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COMMENTARIES 


CONSTITUTION  OF  THE  UNITED  STATES; 


WITH 


A    PRELIMINARY   REVIEW 


THE  CONSTITUTIONAL  HISTORY  OF  THE  COLONIES  AND  STATES, 
BEFORE  THE  ADOPTION  OF  THE  CONSTITUTION. 


By   JOSEPH    STORY,    LL.  D., 


DANE     PROFESSOR     OF     LAW     IIT     HARVARD     UNIVBRSITT. 


ABRIDGED  BY  THE  AUTHOR, 
FOR  THE  USE  OF  COLLEGES  AND  HIGH  SCHOOLS. 


Magistratibus  igitur  opus  est ;   sine  quorum  prudenti^L  ac  diligentift.  esse  civitas  non  potest 
quorumque  doscriptione  omnis  Reipublica  moderatio  continetur." 

CtcERo  DE  Leo.  lib.  3.  cap.  3. 
"Government  is  a  cjOQ^rivantie  of  human  Wisdom  to  provide  fh:  human  wants." 

//^\/^  BlTRKB. 


BOSTON: 

MILLIARD,     GRAY,     AND     COMPANY. 

CAMBRIDGE: 

BROWN,     SHATTUCK,     AND     CO. 

1833. 


Entered  according  to  the  act  of  Congress  in  the  year  one  thousand  eight  hundred  and  thirty-three, 

by  Joseph  Story, 

in  the  Clerk's  office  of  the  District  Court  of  tho  District  of  JMassacliusetts. 


ifr-p 


CAMBRIDGE: 

CHARLES      FOLSOM, 

PRINTER    TO    THE     UNIVERSITY. 


TO  THE 

HONORABLE  JOHN  MARSHALL,  LL.  D., 


CHIEF  JUSTICE  OF  THE  UNITED  STATES  OF  AMERICA. 

Sir, 
I  ask  the  favour  of  dedicating  this  work  to  you.  I  know 
not,  to  whom  it  could  with  so  much  propriety  be  dedicated,  as 
to  one,  whose  youth  was  engaged  in  the  arduous  enterprises  of 
the  Revokition  ;  whose  manhood  assisted  in  framing  and  sup- 
porting the  national  Constitution  ;  and  whose  maturer  years 
have  been  devoted  to  the  task  of  unfolding  its  powers,  and 
illustrating  its  principles.  When,  indeed,  I  look  back  upon 
your  judicial  labours  during  a  period  of  thirty-two  years,  it  is 
difficult  to  suppress  astonishment  at  their  extent  and  variety, 
and  at  the  exact  learning,  the  profound  reasoning,  and  the  solid 
principles,  which  they  every  where  display.  Other  Judges 
have  attained  an  elevated  reputation  by  similar  labours  in  a 
single  department  of  jurisprudence.  But  in  one  department, 
(it  need  scarcely  be  said,  that  I  allude  to  that  of  constitutional 
law,)  the  common  consent  of  your  countrymen  has  admitted 
you  to  stand  without  a  rival.  Posterity  will  assuredly  confirm 
by  its  deliberate  award,  what  the  present  age  has  approved,  as 
an  act  of  undisputed  justice.  Your  expositions  of  constitutional 
law  enjoy  a  rare  and  extraordinary  authority.  They  constitute 
a  monument  of  fame  far  beyond  the  ordinary  memorials  of 
political  and  mihtary  glory.  They  are  destined  to  enlighten, 
instruct,  and  convince  future  generations  ;  and  can  scarcely 
perish  but  with  the  memory  of  the  constitution  itself.  They 
are  the  victories  of  a  mind  accustomed  to  grapple  with  difficul- 
ties, capable  of  unfolding  the  most  comprehensive  truths  with 
masculine  simplicity,  and  severe  logic,  and  prompt  to  dissipate 
the  illusions  of  ingenious  doubt,  and  subtle  argument,  and  im- 
passioned eloquence.    They  remind  us  of  some  mighty  river  of 


IV  DEDICATION. 

our  own  country,  which,  gathering  in  its  course  the  contribu- 
tions of  many  tributary  streams,  pours  at  last  its  own  current 
into  the  ocean,  deep,  clear,  and  irresistible. 

But  I  confess,  that  I  dwell  with  even  mOre  pleasure  upon 
the  entirety  of  a  hfe  adorned  by  consistent  principles,  and 
filled  up  in  the  discharge  of  virtuous  duty ;  where  there  is 
nothing  to  regret,  and  nothing  to  conceal ;  no  friendships  brok- 
en ;  no  confidence  betrayed  ;  no  timid  surrenders  to  popular 
clamour ;  no  eager  reaches  for  popular  favour.  Who  does 
not  listen  with  conscious  pride  to  the  truth,  that  the  disciple, 
the  friend,  the  biographer  of  Washington,  still  lives,  the  un- 
compromising advocate  of  his  principles  ? 

I  am  but  too  sensible,  that  to  some  minds  the  time  may  not 
seem  yet  to  have  arrived,  when  language,  like  this,  however 
true,  should  meet  the  eyes  of  the  public.  May  the  period  be 
yet  far  distant,  when  praise  shall  speak  out  with  that  fulness  of 
utterance,  which  belongs  to  the  sanctity  of  the  grave. 

But  I  know  not,  that  in  the  course  of  providence  the  privi- 
lege will  be  allowed  me  hereafter,  to  declare,  in  any  suitable 
form,  my  deep  sense  of  the  obligations,  which  the  jurispru- 
dence of  my  country  owes  to  your  labours,  of  which  I  have 
been  for  twenty-one  years  a  witness,  and  in  some  humble 
measure  a  companion.  And  if  any  apology  should  be  re- 
quired for  my  present  freedom,  may  I  not  say,  that  at  your  age 
all  reserve  may  well  be  spared,  since  all  your  labours  must 
soon  belong  exclusively  to  history  ? 

Allow  me  to  add,  that  I  have  a  desire  (will  it  be  deemed 
presumptuous  ?)  to  record  upon  these  pages  the  memory  of  a 
friendship,  which  has  for  so  many  years  been  to  me  a  source 
of  inexpressible  satisfaction ;  and  which,  I  indulge  the  hope, 
may  continue  to  accompany  and  cheer  me  to  the  close  of  life. 
I  am  with  the  highest  respect, 

affectionately  your  servant, 

JOSEPH  STORY. 

Cambridge,  January,  1833. 


PREFACE. 

TO  THE  ORIGINAL  WORK. 


I  NOW  offer  to  the  public  another  portion  of  the  labours  de- 
volved on  me  in  the  execution  of  the  duties  of  the  Dane  Pro- 
fessorship of  Law  in  Harvard  University.  The  importance  of 
the  subject  will  hardly  be  doubted  by  any  persons,  who  have 
been  accustomed  to  deep  reflection  upon  the  nature  and  value 
of  the  Constitution  of  the  United  States.  I  can  only  regret, 
that  it  has  not  fallen  into  abler  hands,  with  more  leisure  to  pre- 
pare, and  more  various  knowledge  to  bring  to  such  a  task. 

Imperfect,  however,  as  these  Commentaries  may  seem  to 
those,  who  are  accustomed  to  demand  a  perfect  finish  in  all 
elementary  works,  they  have  been  attended  with  a  degree 
of  uninviting  labour,  and  dry  research,  of  which  it  is  scarcely 
possible  for  the  general  reader  to  form  any  adequate  estimate. 
Many  of  the  materials,  lay  loose  and  scattered ;  and  were  to 
be  gathered  up  among  pamphlets  and  discussions  of  a  tempo- 
rary character ;  among  obscure  private  and  public  documents  ; 
and  from  collections,  which  required  an  exhausting  diligence 
to  master  their  contents,  or  to  select  from  unimportant  masses, 
a  few  facts,  or  a  solitary  argument.  Indeed,  it  required  no 
small  labour,  even  after  these  sources  were  explored,  to  bring 
together  the  irregular  fragments,  and  to  form  them  into  groups, 
in  which  they  might  illustrate  and  support  each  other. 

From  two  great  sources,  however,  I  have  drawn  by  far  the 
greatest  part  of  my  most  valuable  materials.  These  are.  The 
Federalist,  an  incomparable  commentary  of  three  of  the  great- 
est statesmen  of  their  age  ;  and  the  extraordinary  Judgments 
of  Mr.  Chief  Justice  Marshall  upon  constitutional  law.  The 
former  have  discussed  the  structure  and  organization  of  the 
national  government,  in  all  its  departments,  with  admirable  ful- 


VI  PREFACE. 


ness  and  force.  The  latter  has  expounded  the  appHcation  and 
limits  of  its  powers  and  functions  with  unrivalled  profoundness 
and  felicity.  The  Federalist  could  do  little  more,  than  state 
the  objects  and  general  bearing  of  these  powers  and  functions. 
The  masterly  reasoning  of  the  Chief  Justice  has  followed  them 
out  to  their  ultimate  results  and  boundaries,  with  a  precision 
and  clearness,  approaching,  as  near  as  may  be,  to  mathematical 
demonstration.  The  Federalist,  being  written  to  meet  the 
most  prevalent  popular  objections  at  the  time  of  the  adoption  of 
the  Constitution,  has  not  attempted  to  pursue  any  very  exact 
order  in  its  reasoning  ;  but  has  taken  up  subjects  in  such  a 
manner,  as  was  best  adapted  at  the  time  to  overcome  preju- 
dices, and  win  favour.  Topics,  therefore,  having  a  natural 
connexion,  are  sometimes  separated;  and  illustrations  appro- 
priate to  several  important  points,  are  sometimes  presented  in 
an  incidental  discussion.  I  have  transferred  into  my  own 
pages  all,  which  seemed  to  be  of  permanent  importance  in  that 
great  work  ;  and  have  thereby  endeavoured  to  make  its  merits 
more  generally  known. 

The  reader  must  not  expect  to  find  in  these  pages  any 
novel  views,  and  novel  constructions  of  the  Constitution.  I 
have  not  the  ambition  to  be  the  author  of  any  new  plan  of  in- 
terpreting the  theory  of  the  Constitution,  or  of  enlarging  or  nar- 
rowing its  powers  by  ingenious  subtleties  and  learned  doubts. 
My  object  will  be  sufficiently  attained,  if  I  shall  have  succeeded 
in  bringing  before  the  reader  the  true  view  of  its  powers  main- 
tained by  its  founders  and  friends,  and  confirmed  and  illustrated 
by  the  actual  practice  of  the  government.  The  expositions  to 
be  found  in  the  work  are  less  to  be  regarded,  as  my  own  opin- 
ions, than  as  those  of  the  great  minds,  which  framed  the  Con- 
stitution, or  which  have  been  from  time  to  time  called  upon  to 
administer  itx  Upon  subjects  of  government  it  has  always  ap- 
peared to  me,  that  metaphysical  refinements  are  out  of  place. 
A  constitution  of  government  is  addressed  to  the  common  sense 
of  the  people ;  and  never  was  designed  for  trials  of  logical 
skill,  or  visionary  speculation. 

The  reader  will  sometimes  find  the  same  train  of  reasoning 
brought  before   him  in  different  parts  of  these  Commentaries. 


PREFACE.  Vll 


It  was  indispensable  to  do  so,  unless  the  discussion  was  left 
imperfect,  or  the  reader  was  referred  back  to  other  pages,  to 
gather  up  and  combine  disjointed  portions  of  reasoning.  In 
cases,  which  have  undergone  judicial  investigation,  or  which 
concern  the  judicial  department,  I  have  felt  myself  restricted 
to  more  narrow  discussions,  than  in  the  rest  of  the  work ;  and 
have  sometimes  contented  myself  with  a  mere  transcript  from 
the  judgments  of  the  court.  It  may  readily  be  understood,  that 
this  course  has  been  adopted  from  a  solicitude,  not  to  go  inci- 
dentally beyond  the  line  pointed  out  by  the  authorities. 

In  dismissing  the  work,  I  cannot  but  solicit  the  indulgence 
of  the  public  for  its  omissions  and  deficiencies.  With  more 
copious  materials  it  might  have  been  made  more  exact,  as  well 
as  more  satisfactory.  With  more  leisure  and  more  learning  it 
might  have  been  wrought  up  more  in  the  spirit  of  political 
philosophy.  Such  as  it  is,  it  may  not  be  wholly  useless,  as  a 
means  of  stimulating  abler  minds  to  a  more  thorough  review 
of  the  whole  subject ;  and  of  impressing  upon  Americans  a 
reverential  attachment  to  the  Constitution,  as  in  the  highest 
sense  the  palladium  of  American  liberty. 

January,  1833. 


ADVERTISEMENT  TO  THE  ABRIDGMENT. 

The  present  work  is  an  abridgment,  made  by  the  author, 
of  his  original  work,  for  the  use  of  Colleges  and  High-schools. 
It  presents  in  a  compressed  form  the  leading  doctrines  of  that 
work,  so  far  as  they  are  necessary  to  a  just  understanding 
of  the  actual  provisions  of  the  constitution.  Many  illustra- 
tions and  vindications  of  these  provisions  are  necessarily  omit- 
ted. But  sufficient  are  retained  to  enable  every  student  to 
comprehend  and  apply  the  great  principles  of  constitutional 
law,  which  were  maintained  by  the  founders  of  the  constitution, 
and  which  have  been  since  promulgated  by  those,  who  have, 
from  time  to  time,  administered  it,  or  expounded  its  powers. 
I  indulge  the  hope,  that  even  in  this  reduced  form  the  reasoning 


Vlll  ADVERTISEMENT. 

in  favour  of  every  clause  of  the  constitution  will  appear  satis- 
factory and  conclusive  ;  and  that  the  youth  of  my  country  will 
learn  to  venerate  and  admire  it  as  the  only  solid  foundation, 
on  which  to  rest  our  national  union,  prosperity,  and  glory. 
April,  1833. 


TABLE   OF    CONTENTS. 


Page 

The  Constitution xvii 

Table  op  Sections  xxxv 

Preliminary  Chapter  ....  1 


BOOK   I. 

HISTORY    OF    THE    COLONIES. 

CHAPTER  I. 
Origin  and  Titie  to  the  Territory  of  the  Colonies  3-7  ^ 

CHAPTER  11. 

Origin  and  Settlement  of  Virginia  8-12 

CHAPTER  m. 

Origin  and  Settlemnt  of  New-England,  and  Plymouth 

Colony 13-18 

CHAPTER  IV. 

Massachusetts      .         . 19-27 

Abr.  B 


X  CONTENTS. 

Page 

CHAPTER  V. 

New-Hampshire  .         .         .         .         .         .         .28-30 

CHAPTER  VI. 
Maine 31-33 

CHAPTER  VII. 
Connecticut 34-36 

CHAPTER  VIII. 

Rhode-Island .37-40 

CHAPTER  IX. 
Maryland  .  .       41-43 

CHAPTER  X. 
New- York 44-46 

CHAPTER  XI. 
New-Jersey 47-49 

CHAPTER  XII. 
Pennsylvania  50-53 

CHAPTER  XIII. 

Delaware         .         .  54-55 

CHAPTER  XIV. 

North  and  South-Carolina 56-60 

CHAPTER  XV. 
Georgia 61-61 

CHAPTER  XVI. 
General  Review  of  the  Colonies  .         .         .  62-66 

CHAPTER  XVII. 

General  Review  of  the  Colonies       .        .        .         .  67-83 


CONTENTS.  XI 

BOOK    II. 

HISTORY  OF  THE  REVOLUTION  AND   OF  THE   CONFEDERATION. 

Page 

CHAPTER  I 

The  History  of  the  Revolution  .         .         .         .  84-90 

CHAPTER  II. 
Origin  of  the  Confederation 91-93 

CHAPTER  III. 

Analysis  of  the  Articles  of  the  Confederation     .         .         94-104 


BOOK   III. 

THE   CONSTITUTION  OF  THE  UNITED  STATES. 

CHAPTER  1. 

Origin  and  Adoption  of  the  Constitution  105-109 

CHAPTER  II. 

Objections  to  the  Constitution  .         .  .       110-115 

CHAPTER  III. 
Nature  of  the  Constitution  —  whether  a  Compact       .       1 16  - 122 

CHAPTER  IV. 

Who  is  the  final  Judge  or  Interpreter  in  Constitutional 

Controversies 12  5-133 

CHAPTER  V. 
Rules  of  Interpretation  of  the  Constitution  134  - 162 


Xll  CONTENTS. 

Page 

CHAPTER  VI. 
The  Preamble .163-194 

CHAPTER  VII. 
Distribution  of  Powers  .....  195  -  198 

CHAPTER  VIII. 
The  Legislature  .        .  .  199-209 

CHAPTER  IX. 
The  House  of  Representatives  ....     210  -  251 

CHAPTER  X. 
The  Senate     . 252-290 

CHAPTER  XI. 

Elections  and  Meetings  of  Congress  .         .         .       291  -  297 

CHAPTER  XII. 

Privileges  and  Powers  of  both  Houses  of  Congress     .      298-314 

CHAPTER  XIII. 

Mode  of  Passing  Laws  —  President's  Negative  .       315-328 

CHAPTER  XIV. 

Powers  of  Congress  —  Taxes  ....       329-357 

CHAPTER  XV. 
Power  to  Borrow  Money  and  Regulate  Commerce     .       358-382 

CHAPTER  XVI. 

Power  over  Naturalization  and  Bankruptcy     .         .  383-391 

CHAPTER  XVII. 

Power  to  Coin  Money  and  Fix  the  Standard  of  Weights 

and  Measures 392-395 


CONTENTS.  XUI 

Page 

CHAPTER  XVIII. 
Power  to  Establish  Post-Offices  and  Post-Roads        .      396  -  401 

CHAPTER  XIX. 

Power  to  Promote  Science  and  Useful  Arts         .         .     402-  404 

CHAPTER  XX. 

Power  to  Punish  Piracies  and  Felonies  on  the  High 
Seas 405-408 

CHAPTER  XXI. 

Power  to  Declare  War  and  Make  Captures  —  Army  — 
Navy 409-419 

CHAPTER  XXII. 
Power  over  the  Militia 420  -  426 

CHAPTER  XXIII. 
Power  over  Seat  of  Government  and  other  ceded  Places  427  -  430 

CHAPTER  XXIV. 

Powers  of  Congress  —  Incidental      ....       431  -  443 

CHAPTER  XXV. 

Powers  of  Congress  —  National  Bank       .         .         .       444  -  452 

CHAPTER  XXVI. 
Powers  of  Congress  —  Internal  Improvements       •  453  -  458 

CHAPTER  XXVII. 

Powers  of  Congress  —  Purchases  of  Foreign  Territory  — 

Embargoes  , 459-465 

CHAPTER  XXVIII. 
Power  of  Congress  to  Punish  Treason        .         .         .       466-469 

CHAPTER  XXIX. 

Power  of  Congress  as  to  Proof  of  State  Records  and 

Proceedings 470  -  472 


XIV  CONTENTS. 

Page 

CHAPTER  XXX. 

Powers  of  Congress  —  Admission  of  new  States,  and 

Acquisition  of  Territory 473  -  475 

CHAPTER  XXXI. 
Powers  of  Congress  —  Territorial  Governments         .       476  -  480 

CHAPTER  XXXn. 

^  Prohibitions  on  the  United  States      .         .  481  -  488 

CHAPTER  XXXni. 

^  Prohibitions  on  the  States 489  -  497 

CHAPTER  XKXIV. 

Prohibitions  on  the  States  —  Impairing  Contracts      .       498-511 

CHAPTER  XXXV. 

Prohibitions  on  the  States  —  Tonnage  Duties  —  Mak- 
ing War       512-514 

CHAPTER  XXXVI. 

Executive  Department — Organization  of         .         .       515-545 

CHAPTER  XXXVII. 

Executive — Powers  and  Duties         .         .         .         .       546-580 

CHAPTER  XXXVIII. 
The  Judiciary  —  Importance  and  Powers  of      .         .       581  -  668 

CHAPTER  XXXIX. 

Definition  and  Evidence  of  Treason         .         .         .       669  -  672 

CHAPTER  XL. 

Privileges  of  Citizens  —  Fugitives  —  Slaves       .         .       673-676 

CHAPTER  XLI. 

Guaranty  of  Republican  Government  —  Mode  of  Making 

Amendments 677-682 


CONTENTS.  XV 

CHAPTER  XLII.  ^"*' 

Public  Debts  —  Supremacy  of  Constitution  and  Laws       683  -  687 

CHAPTER  XLIII. 

Oaths  of  Office  —  Religious  Test  —  Ratification  of  the 

Constitution .688-692 

CHAPTER  XLIV. 
Amendments  to  the  Constitution       ....       693-  714 

CHAPTER  XLV. 
Concluding  Remarks 715  -  719 


^>'    OF 


CONSTITUTION 


or  THE 


UNITED  STATES  OF  AMERICA 


We,  the  people  of  the  United  States,  in  order  to  form  a 
more  perfect  union,  estabhsh  justice,  ensure  domestic  tranquil- 
lity, provide  for  the  common  defence,  promote  the  general  wel- 
fare, and  secure  the  blessings  of  liberty  to  ourselves  and  our 
posterity,  do  ordain  and  establish  this  Constitution  for  the 
United  States  of  America. 

ARTICLE  I. 
Section  1. 
1.  All  legislative  powers  herein  granted,  shall  be  vested  in 
a  congress  of  the  United  States,  which  shall  consist  of  a  senate 
and  house  of  representatives. 

Section  2. 

1.  The  house  of  representatives  shall  be  composed  of  mem- 
bers chosen  every  second  year  by  the  people  of  the  several 
states,  and  the  electors  in  each  state  shall  have  the  qualifica- 
tions requisite  for  electors  of  the  most  numerous  branch  of  the 
state  legislature. 

2.  No  person  shall  be  a  representative  who  shall  not  have 
attained  to  the  age  of  twenty-five  years,  and  been  seven 
years  a  citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  that  state  in  which  he  shall  be 
chosen. 


A 


y 


XVm  THE  CONSTITUTION. 

3.  Representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  states  which  may  be  included  within  this 
Union,  according  to  their  respective  numbers,  which  shall  be 
determined  by  adding  to  the  whole  number  of  free  persons, 
including  those  bound  to  service  for  a  term  of  years,  and 
excluding  Indians  not  taxed,  three-fifths  of  all  other  persons. 
The  actual  enumeration  shall  be  made  within  three  years  after 
the  first  meeting  of  the  congress  of  the  United  States,  and 
within  every  subsequent  term  of  ten  years,  in  such  manner  as 
they  shall  by  law  direct.  The  number  of  representatives  shall 
not  exceed  one  for  every  thirty  thousand,  but  each  state  shall 
have  at  least  one  representative ;  and  until  such  enumeration 
shall  be  made,  the  state  of  New  Hampshire  shall  be  entitled 
to  choose  three,  Massachusetts  eight,  Rhode  Island  and  Provi- 
dence Plantations  one,  Connecticut  five.  New  York  six.  New 
Jersey  four,  Pennsylvania  eight,  Delaware  one,  Maryland  six, 
Virginia  ten.  North  Carolina  five,  South  Carolina  five,  and 
Georgia  three. 

4.  When  vacancies  happen  in  the  representation  from  any 
state,  the  executive  authority  thereof  shall  issue  writs  of  elec- 
tion to  fill  such  vacancies. 

5.  The  house  of  representatives  shall  choose  their  speaker 
and  other  officers  ;  and  shall  have  the  sole  power  of  impeach- 
ment. 

Section  3. 

1.  The  senate  of  the  United  States  shall  be  composed  of 
two  senators  from  each  state,  chosen  by  the  legislature  thereof, 
for  six  years  ;  and  each  senator  shall  have  one  vote. 

2.  Immediately  after  they  shall  be  assembled  in  consequence 
of  the  first  election,  they  shall  be  divided  as  equally  as  may  be 
into  three  classes.  The  seats  of  the  senators  of  the  first  class 
shall  be  vacated  at  the  expiration  of  the  second  year,  of  the 
second  class,  at  the  expiration  of  the  fourth  year,  and  of  the 
third  class,  at  the  expiration  of  the  sixth  year,  so  that  one-third 
may  be  chosen  every  second  year  ;  and  if  vacancies  happen  by 
resignation,  or  otherwise,  during  the  recess  of  the  legislature 


THE  CONSTITUTION.  XIX 

of  any  state,  the  executive  thereof  may  make  temporary  ap- 
pointments until  the  next  meeting  of  the  legislature,  which 
shall  then  fill  such  vacancies. 

3.  No  person  shall  be  a  senator  who  shall  not  have  attained 
to  the  age  of  thirty  years,  and  been  nine  years  a  citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  inhabit- 
ant of  that  state  for  which  he  shall  be  chosen. 

4.  The  vice-president  of  the  United  States  shall  he  presi- 
dent of  the  senate,  but  shall  have  no  vote,  unless  they  be 
equally  divided. 

5.  The  Senate  shall  choose  their  other  officers,  and  also  a 
president  pro  tempore,  in  the  absence  of  the  vice-president,  or 
when  he  shall  exercise  the  office  of  president  of  the  United 
States. 

6.  The  senate  shall  have  the  sole  power  to  try  all  impeach- 
ments. When  sitting  for  that  purpose,  they  shall  be  on  oath 
or  affirmation.  When  the  president  of  the  United  States  is 
tried,  the  chief  justice  shall  preside ;  and  no  person  shall  be 
convicted  without  the  concurrence  of  two-thirds  of  the  members 
present. 

7.  Judgment  in  cases  of  impeachment  shall  not  extend  fur-, 
ther  than  to  removal  from  office,  and  disqualification  to  hold 
and  enjoy  any  office  of  honour,  trust,  or  profit,  under  the  United 
States  ;  but  the  party  convicted  shall  nevertheless  be  liable 
and  subject  to  indictment,  trial,  judgment,  and  punishment,  ac^ 
cording  to  law. 

Section  4. 

1.  The  times,  places,  and  manner  of  holding  elections  for 
senators  and  representatives,  shall  be  prescribed  in  each  state 
by  the  legislature  thereof :  but  the  congress  may,  at  any  time 
by  law,  make  or  alter  such  regulations,  except  as  to  the  places 
of  choosing  senators. 

2.  The  congress  shall  assemble  at  least  once  in  every  year, 
and  such  meeting  shall  be  on  the  first  Monday  in  December, 
unless  they  shall  by  law  appoint  a  different  day. 


XX  THE  CONSTITUTION. 


Section  5. 


1.  Each  house  shall  be  the  judge  of  the  elections,  returns, 
and  qualifications  of  its  own  members,  and  a  majority  of  each 
shall  constitute  a  quorum  to  do  business  ;  but  a  smaller  number 
may  adjourn  from  day  to  day,  and  may  be  authorized  to  com- 
pel the  attendance  of  absent  members,  in  such  manner,  and 
under  such  penalties  as  each  house  may  provide. 

2.  Each  house  may  determine  the  rules  of  its  proceedings, 
punish  its  members  for  disorderly  behaviour,  and,  with  the 
concurrence  of  two-thirds,  expel  a  member. 

3.  Each  house  shall  keep  a  journal  of  its  proceedings,  and 
from  time  to  time  publish  the  same,  excepting  such  parts  as 
may,  in  their  judgment,  require  secrecy ;  and  the  yeas  and 
nays  of  the  members  of  either  house  on  any  question,  shall, 
at  the  desire  of  one-fifth  of  those  present,  be  entered  on  the 
journal. 

4.  Neither  house,  during  the  session  of  congress,  shall,  with- 
out the  consent  of  the  other,  adjourn  for  more  than  three  days, 
nor  to  any  other  place  than  that  in  which  the  two  houses  shall 
be  sitting.  / 

Section  6. 

1.  The  senators  and  representatives  shall  receive  a  compen- 
sation for  their  services,  to  be  ascertained  by  law,  and  paid 
out  of  the  treasury  of  the  United  States.  They  shall,  in  all 
cases,  except  treason,  felony,  and  breach  of  the  peace,  be  priv- 
ileged from  arrest  during  their  attendance  at  the  session  of 
their  respective  houses,  and  in  going  to,  and  returning  from,  the 
same  ;  and  for  any  speech  or  debate  in  either  house,  they  shall 
not  be  questioned  In  any  other  place. 

2.  No  senator  or  representative  shall,  during  the  time  for 
which  he  was  elected,  be  appointed  to  any  civil  office  under 
the  authority  of  the  United  States,  which  shall  have  been  cre- 
ated, or  the  emoluments  whereof  shall  have  been  increased 
during  such  time  ;  and  no  person  holding  any  office  under  the 
United  States,  shall  be  a  member  of  either  house  during  his 
continuance  In  office. 


THE  CONSTITUTION.  XXI 


V   Section  7. 


1.  All  bills  for  raising  revenue  shall  originate  in  the  house 
of  representatives  ;  but  the  senate  may  propose  or  concur  with 
amendments  as  on  other  bills. 

2.  Every  bill  which  shall  have  passed  the  house  of  repre- 
sentatives and  the  senate,  shall,  before  it  become  a  law,  be  pre- 
sented to  the  president  of  the  United  States  ;  if  he  approve  he 
shall  sign  it,  but  if  not  he  shall  return  it,  with  his  objections,  to 
that  house  in  which  it  shall  have  originated,  who  shall  enter 
the  objections  at  large  on  their  journal,  and  proceed  to  recon- 
sider it.  If  after  such  reconsideration  two-thirds  of  that  house 
shall  agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the 
objections,  to  the  other  house,  by  which  it  shall  likewise  be 
reconsidered,  and  if  approved  by  two-thirds  of  that  house,  it 
shall  become  a  law.  But  in  all  such  cases  the  votes  of  both 
houses  shall  be  determined  by  yeas  and  nays,  and  the  names 
of  the  persons  voting  for  and  against  the  bill  shall  be  entered 
on  the  journal  of  each  house  respectively.  If  any  bill  shall  not 
be  returned  by  the  president  within  ten  days,  (Sundays  ex- 
cepted,) after  it  shall  have  been  presented  to  him,  the  same 
shall  be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless 
the  congress  by  their  adjournment  prevent  its  return,  in  which 
case  it  shall  not  be  a  law. 

3.  Every  order,  resolution,  or  vote,  to  which  the  concurrence 
of  the  senate  and  house  of  representatives  may  be  necessary, 
(except  on  a  question  of  adjournment,)  shall  be  presented  to 
the  president  of  the  United  States  ;  and  before  the  same  shall 
take  effect,  shall  be  approved  by  him.  or  being  disapproved  by 
him,  shall  be  re-passed  by  two-thirds  of  the  senate  and  house 
of  representatives,  according  to  the  rules  and  limitations  pre- 
scribed in  the  case  of  a  bill. 

Section  8. 

The  congress  shall  have  power 

1.  To  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to 
pay  the  debts  and  provide  for  the  common  defence  and  gen- 


XXll  THE  CONSTITUTION. 

eral  welfare  of  the  United  States ;  but  all  duties,  imposts,  and 
excises,  shall  be  uniform  throughout  the  United  States  : 

2.  To  borrow  money  on  the  credit  of  the  United  States  : 

3.  To  regulate  commerce  with  foreign  nations,  and  among 
the  several  states,  and  with  the  Indian  tribes : 

4.  To  establish  an  uniform  rule  of  naturalization,  and  uni- 
form laws  on  the  subject  of  bankruptcies  throughout  the  United 
States : 

5.  To  coin  money,  regulate  the  value  thereof,  and  of  foreign 
coin,  and  fix  the  standard  of  weights  and  measures : 

6.  To  provide  for  the  punishment  of  counterfeiting  the  secu- 
rities and  current  coin  of  the  United  States: 

7.  To  establish  post-offices  and  post-roads : 

8.  To  promote  the  progress  of  science  and  useful  arts,  by 
securing,  for  limited  times,  to  authors  and  inventors  the  exclu- 
sive right  to  their  respective  writings  and  discoveries  : 

9.  To  constitute  tribunals  inferior  to  the  Supreme  Court  : 

10.  To  define  and  punish  piracies,  and  felonies,  committed 
on  the  high  seas,  and  offences  against  the  law  of  nations  : 

11.  To  declare  war,  grant  letters  of  marque  and  reprisal, 
and  make  rules  concerning  captures  on  land  and  water : 

12.  To  raise  and  support  armies,  but  no  appropriation  of 
money  to  that  use  shall  be  for  a  longer  term  than  two  years : 

13.  To  provide  and  maintain  a  navy  : 

14.  To  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces : 

15.  To  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrections,  and  repel  invasions : 

16.  To  provide  for  organizing,  arming,  and  disciplining  the 
militia,  and  for  governing  such  part  of  them  as  may  be  em- 
ployed in  the  service  of  the  United  States,  reserving  to  the 
states  respectively,  the  appointment  of  the  officers,  and  the 
authority  of  training  the  militia  according  to  the  discipline  pre- 
scribed by  congress  : 

17.  To  exercise  exclusive  legislation  in  all  cases  whatsoever, 
over  such  district,  (not  exceeding  ten  miles  square,)  as  may, 
by  cession  of  particular  states,  and  the  acceptance  of  congress. 


THE  CONSTITUTION.  XXUl 

become  the  seat  of  the  government  of  the  United  States,  and 
to  exercise  like  authority  over  all  places  purchased  by  the  con- 
sent of  the  legislature  of  the  state  in  which  the  same  shall  be, 
for  the  erection  of  forts,  magazines,  arsenals,  dock-yards,  and 
other  needful  buildings  :  —  And 

18.  To  make  all  laws  which  shall  be  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  government  of  the 
United  States,  or  in  any  department  or  officer  thereof. 

Section  9. 

1.  The  migration  or  importation  of  such  persons,  as  any  of 
the  states  now  existing  shall  think  proper  to  admit,  shall  not 
be  prohibited  by  the  congress  prior  to  the  year  one  thousand 
eight  hundred  and  eight,  but  a  tax  or  duty  may  be  imposed  on 
such  importation,  not  exceeding  ten  dollars  for  each  person. 

2.  The  privilege  of  the  WTit  of  habeas  corpus  shall  not  be 
suspended,  unless  when  in  cases  of  rebellion  or  invasion  the 
public  safety  may  require  it. 

3.  No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

4.  No  capitation,  or  other  direct  tax  shall  be  laid,  unless  in 
proportion  to  the  census  or  enumeration  herein  before  directed 
to  be  taken. 

5.  No  tax  or  duty  shall  be  laid  on  articles  exported  from 
any  state.  No  preference  shall  be  given  by  any  regulation  of 
commerce  or  revenue  to  the  ports  of  one  state  over  those  of 
another ;  nor  shall  vessels  bound  to,  or  from,  one  state,  be 
obliged  to  enter,  clear,  or  pay  duties,  in  another. 

6.  No  money  shall  be  drawn  from  the  treasury,  but  in  con- 
sequence of  appropriations  made  by  law ;  and  a  regular  state- 
ment and  account  of  the  receipts  and  expenditures  of  all  public 
money  shall  be  published  from  time  to  time. 

7.  No  title  of  nobility  shall  be  granted  by  the  United  States  : 
And  no  person  holding  any  office  of  profit  or  trust  under  them, 
shall,  without  the  consent  of  the  congress,  accept  of  any  pres- 
ent, emolument,  office,  or  title  of  any  kind  whatever,  from  any 
king,  prince,  or  foreign  state.  .    .    ■, 


XXIV  THE  CONSTITUTION. 

Section  10. 

1.  No  state  shall  enter  into  any  treaty,  alliance,  or  confed- 
eration ;  grant  letters  of  marque  and  reprisal ;  coin  money ; 
emit  bills  of  credit ;  make  any  thing  but  gold  and  silver  coin  a 
tender  in  payment  of  debts  ;  pass  any  bill  of  attainder,  ex  post 
facto  law,  or  law  impairing  the  obligation  of  contracts,  or  grant 
any  title  of  nobility. 

2.  No  state  shall,  without  the  consent  of  the  congress,  lay 
any  imposts  or  duties  on  imports  or  exports,  except  what  may 
be  absolutely  necessary  for  executing  its  inspection  laws  ;  and 
the  net  produce  of  all  duties  and  imposts,  laid  by  any  state  on 
imports  or  exports,  shall  be  for  the  use  of  the  treasury  of  the 
United  States ;  and  all  such  laws  shall  be  subject  to  the  re- 
vision and  control  of  the  congress.  No  state  shall,  without  the 
consent  of  congress,  lay  any  duty  of  tonnage,  keep  troops,  or 
ships  of  war,  in  time  of  peace,  enter  into  any  agreement  or 
compact  with  another  state,  or  with  a  foreign  power,  or  engage 
in  war,  unlesss  actually  invaded,  or  in  such  imminent  danger  as 
will  not  admit  of  delay. 

ARTICLE  II. 

Section  1. 

1.  The  executive  power  shall  be  vested  in  a  president  of 
the  United  States  of  America.  He  shall  hold  his  office  during 
the  term  of  four  years,  and  together  with  the  vice-president, 
chosen  for  the  same  term,  be  elected  as  follows  : 

2.  Each  state  shall  appoint,  in  such  manner  as  the  legisla- 
ture thereof  may  direct,  a  number  of  electors  equal  to  the  whole 
number  of  senators  and  representatives  to  which  the  state  may 
be  entitled  in  the  congress  :  but  no  senator  or  representative, 
or  person  holding  an  office  of  trust  or  profit  under  the  United 
States,  shall  be  appointed  an  elector. 

3.  The  electors  shall  meet  in  their  respective  states,  and 
vote  by  ballot  for  two  persons,  of  whom  one  at  least  shall  not 
be  an  inhabitant  of  the  same  state  with  themselves.  And 
they  shall  make  a  list  of  all  the  persons  voted  for,  and  of  the 
number  of  votes  for  each  ;  which  list  they  shall  sign  and  certify, 


THE  CONSTITUTION.  XXV 

and  transmit,  sealed,  to  the  seat  of  the  government  of  the 
United  States,  directed  to  the  president  of  the  senate.  The 
president  of  the  senate  shall,  in  the  presence  of  the  senate  and 
house  of  representatives,  open  all  the  certificates,  and  the  votes 
shall  then  be  counted.  The  person  having  the  greatest  num- 
ber of  votes  shall  be  the  president,  if  such  number  be  a  major- 
ity of  the  whole  number  of  electors  appointed  ;  and  if  there 
be  more  than  one  who  have  such  majority,  and  have  an  equal 
number  of  votes,  then  the  house  of  representatives  shall  im- 
mediately choose  by  ballot  one  of  them  for  president ;  and 
if  no  person  have  a  majority,  then,  from  the  five  highest  on 
the  list  the  said  house  shall  in  like  manner  choose  the  presi- 
dent. But  in  choosing  ihe  president  the  votes  shall  be  taken 
by  states,  the  representation  from  each  state  having  one  vote  ; 
a  quorum  for  this  purpose  shall  consist  of  a  member  or  mem- 
bers from  two-thirds  of  the  states,  and  a  majority  of  all  the 
states  shall  be  necessary  to  a  choice.  In  every  case,  after  the 
choice  of  the  president,  the  person  having  the  greatest  num- 
ber of  votes  of  the  electors  shall  be  the  vice-president.  But  if 
there  should  remain  two  or  more  who  have  equal  votes,  the 
senate  shall  choose  from  them  by  ballot  the  vice-president. 

4.  The  congress  may  determine  the  time  of  choosing  the 
electors,  and  the  day  on  which  they  shall  give  their  votes ; 
which  day  shall  be  the  same  throughout  the  United  States. 

5.  No  person  except  a  natural  born  citizen,  or  a  citizen  of 
the  United  States,  at  the  time  of  the  adoption  of  this  Constitu- 
tion, shall  be  eligible  to  the  office  of  president ;  neither  shall 
any  person  be  eligible  to  that  office  who  shall  not  have  attained 
to  the  age  of  thirty -five  years,  and  been  fourteen  years  a  resi- 
dent within  the  United  States. 

6.  In  case  of  the  removal  of  the  president  from  office,  or  of 
his  death,'  resignation,  or  inability  to  discharge  the  powers  and 
duties  of  the  said  office,  the  same  shall  devolve  on  the  vice- 
president,  and  the  congress  may  by  law  provide  for  the  case  of 
removal,  death,  resignation,  or  inability,  both  of  the  president 
and  vice-president,  declaring  what  officer  shall  then  act  as  pres- 

Abr,  D 


XXVI  THE  CONSTITUTION. 

ident,  ?ind  such  officer  shall  act  accordingly  until  the  disability 
be  removed,  or  a  president  shall  be  elected. 

7.  The  president  shall,  at  stated  times,  receive  for  his  ser- 
vices, a  compensation,  which  shall  neither  be  increased  nor 
diminished  dm-ing  the  period  for  which  he  shall  have  been 
elected,  and  he  shall  not  receive  within  that  period  any  other 
emolument  from  the  United  States  or  any  of  them. 

8.  Before  he  enter  on  the  execution  of  his  office,  he  shall 
take  the  following  oath  or  affirmation  : 

9.  "  I  do  solemnly  swear,  (or  affirm,)  that  I  will  faithfully 
"  execute  the  office  of  president  of  the  United  States,  and  will, 
"  to  the  best  of  my  ability,  preserve,  protect,  and  defend  the 
"  Constitution  of  the  United  States." 

Section  2. 

1.  The  president  shall  be  commander-in-chief  of  the  army 
and  navy  of  the  United  States,  and  of  the  militia  ef  the  several 
states,  when  called  into  the  actual  service  of  the  United  States  ; 
he  may  require  the  opinion,  in  writing,  of  the  principal  officer 
in  each  of  the  executive  departments,  upon  any  subject  relat- 
ing to  the  duties  of  their  respective  offices,  and  he  shall  have 
power  to  grant  reprieves  and  pardons  for  offences  against  the 
United  States,  except  in  cases  of  impeachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and  consent 
of  the  senate,  to  make  treaties,  provided  two  thirds  of  the 
senators  present  concur ;  and  he  shall  nominate,  and  by  and 
with  the  advrce  and  consent  of  the  senate,  shall  appoint  ambas- 
sadors, other  public  ministers  and  consuls,  judges  of  the  su- 
preme court,  and  all  other  officers  of  the  United  States,  whose 
appointments  are  not  herein  otherwise  provided  for,  and  which 
shall  be  established  by  law  :  but  the  congress  may  by  law  vest 
the  appointment  of  such  inferior  officers,  as  they  think  proper, 
in  the  president  alone,  in  the  courts  of  law,  or  in  the  heads  of 
departments. 

3.  The  president  shall  have  power  to  fill  up  all  vacancies 
that  may  happen  during  the  recess  of  the  senate,  by  granting 
commissions,  which  shall  expire  at  the  end  of  their  next  session. 


THE  CONSTITUTION.  XXVI 

Section  3. 

Ix  He  shall  from  time  to  time  give  to  the  congress  informa- 
tion of  the  state  of  the  Union,  and  recommend  to  their  consid- 
eration such  measures  as  he  shall  judge  necessary  and  expedi- 
ent ;  he  may,  on  extraordinary  occasions,  convene  both  houses, 
or  either  of  them,  and  in  case  of  disagreement  between  them 
with  respect  to  the  time  of  adjournment,  he  may  adjourn  them 
to  such  time  as  he  shall  think  proper ;  he  shall  receive  ambas- 
sadors and  other  public  ministers;  he  shall  take  care  that  the 
laws  be  faithfully  executed,  and  shall  commission  all  the  officers 
of  the  United  States. 

Section  4. 

1.  The  president,  vice-president,  and  all  civil  officers  of  the 
United  States  shall  be  removed  from  office  on  impeachment 
for,  and  conviction  of,  treason,  bribery,  or  other  high  crimes 
and  misdemeanors. 

ARTICLE  III.       , 

Section  1. 

1.  The  judicial  power  of  the  United  States,  shall  be  vested 
in  one  Supreme  Court,  and  in  such  inferior  courts  as  the  con- 
gress may  from  time  to  time  ordain  and  establish.  The  judges, 
both  of  the,  supreme  and  inferior  courts,  shall  hold  their  offices 
during  good  behaviour,  and  shall,  at  stated  times,  receive  for 
their  services,  a  compensation,  which  shall  not  be  diminished 
during  their  continuance  in  office. 

Section  2. 

1.  The  judicial  power  shall  extend  to  all  cases,  in  law  and 
equity,  arising  under  this  Constitution,  the  laws  of  the  United 
States,  and  treaties  made,  or  which  shall  be  made,  under  their 
authority  ;  to  all  cases  affecting  ambassadors,  other  public  min- 
isters and  consuls  ;  to  all  cases  of  admiralty  and  maritime  juris- 
diction ;  to  controversies  to  which  the  United  States  shall  be 
a  party  ;  to  controversies  between  two  or  more  states,  between 


XXVlll  THE  CONSTITUTION. 

a  state  and  citizens  of  another  s^ate,  between  citizens  of  differ- 
ent states,  between  citizens  of  the  same  state  claiming  lands 
under  grants  of  different  states,  and  between  a  state,  or  the 
citizens  thereof,  and  foreign  states,  citizens,  or  subjects. 

2.  In  all  cases  affecting  ambassadors,  other  public  ministers 
and  consuls,  and  those  in  which  a  state  shall  be  a  party,  the 
supreme  court  shall  have  original  jurisdiction.  In  all  the  other 
cases  before  mentioned,  the  supreme  court  shall  have  appellate 
jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions,  and 
under  such  regulations  as  the  congress  shall  make. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeachment, 
shall  be  by  jury  ;  and  such  trial  shall  be  held  in  the  state  where 
the  said  crimes  shall  have  been  committed  ;  but  when  not 
committed  within  any  state,  the  trial  shall  be  at  such  place  or 
places  as  the  congress  may  by  law  have  directed. 

Section  3. 

1.  Treason  against  the  United  States,  shall  consist  only  in 
levying  war  against  them,  or  in  adhering  to  their  enemies,  giv- 
ing them  aid  and  comfort.  No  person  shall  be  convicted  of 
treason  unless  on  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  on  confession  in  open  court. 

2.  The  congress  shall  have  power  to  declare  the  punishment 
of  treason,  but  no  attainder  of  treason  shall  work  corruption 
of  blood,  or  forfeiture,  except  during  the  life  of  the  person 
attainted. 

ARTICLE  IV. 
Section  I. 
1 .  Full  faith  and  credit  shall  be  given  in  each  state  to  the 
public  acts,  records,  and  judicial  proceedings  of  every  other 
state.  And  the  congress  may  by  general  laws  prescribe  the 
manner  in  which  such  acts,  records,  and  proceedings  shall  be 
proved,  and  the  effect  thereof. 

Section  2. 
1.  The  citizens  of  each  state   shall  be  entitled  to  all  priv- 
ileges and  immunities  of  citizens  in  the  several  states. 


THE  CONSTITUTION.  XXIX 

2.  A  person  charged  in  any  state  with  treason,  felony,  or 
other  crime,  who  shall  flee  from  justice,  and  be  found  in  an- 
other state,  shall,  on  demand  of  the  executive  authority  of  the 
state  from  which  he  fled,  be  delivered  up,  to  be  removed  to 
the  state  having  jurisdiction  of  the  crime. 

3.  No  person  held  to  service  or  labour  in  one  state,  under 
the  laws  thereof,  escaping  into  another,  shall,  in  consequence  of 
any  law  or  regulation  therein,  be  discharged  from  such  service 
or  labour,  but  shall  be  delivered  up  on  claim  of  the  party  to 
whom  such  service  or  labour  may  be  due. 

Section  3. 

1.  New  states  may  be  admitted  by  the  congress  into  this 
Union  ;  but  no  new  state  shall  be  formed  or  erected  within 
the  jurisdiction  of  any  other  state  ;  nor  any  state  be  formed  by 
the  junction  of  two  or  more  states,  or  parts  of  states,  without 
the  consent  of  the  legislatures  of  the  states  concerned,  as  well 
as  of  the  congress. 

2.  The  congress  shall  have  power  to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  territory  or 
other  property  belonging  to  the  United  States ;  and  nothing  in 
this  Constitution  shall  be  so  construed  as  to  prejudice  any 
claims  of  the  United  States,  or  of  any  particular  state. 

Section  4. 

1.  The  United  States  shall  guarantee  to  every  state  in  this 
Union  a  republican  form  of  government,  and  shall  protect  each 
of  them  against  invasion  ;  and  on  application  of  the  legislature, 
or  of  the  executive,  (when  the  legislature  cannot  be  convened,) 
against  domestic  violence. 

ARTICLE  V. 

1.  The  congress,  whenever  two-thirds  of  both  houses  shall 
deem  it  necessary,  shall  propose  amendments  to  this  Constitu- 
tion, or,  on  the  application  of  the  legislatures  of  two-thirds  of 
the  several  states,  shall  call  a  convention  for  proposing  amend- 
ments, which,  in  either  case,  shall  be  valid   to  all  intents   and 


XXX  THE  CONSTITUTION. 

purposes,  as  part  of  this  Constitution,  when  ratified  by  the 
legislatures  of  three-fourths  of  the  several  states  or  by  conven- 
tions in  three-fourths  thereof,  as  the  one  or  the  other  mode  of 
ratification  may  be  proposed  by  the  congress :  Provided,  that 
no  amendment,  which  may  be  made  prior  to  the  year  one 
thousand  eight  hundred  and  eight,  shall  in  any  manner  affect 
the  first  and  fourth  clauses  in  the  ninth  section  of  the  first 
article  ;  and  that  no  state,  without  its  consent,  shall  be  de- 
prived of  its  equal  suffrage  in  the  senate. 

ARTICLE  VI. 

1.  All  debts  contracted  and  engagements  entered  into,  be- 
fore the  adoption  of  this  Constitution,  shall  be  as  valid  against 
the  United  States  under  this  Constitution,  as  under  the  con- 
federation. 

2.  This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof;  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land;  and 
the  judges  in  every  state  shall  be  bound  thereby,  any  thing 
in  the  constitution  or  laws  of  any  state  to  the  contrary  not- 
withstanding. 

3.  The  senators  and  representatives  before  mentioned,  and 
the  members  of  the  several  state  legislatures,  and  all  executive 
and  judicial  officers,  both  of  the  United  States  and  of  the 
several  states  shall  be  bound,  by  oath  or  affirmation,  to  support 
this  Constitution  ;  but  no  religious  test  shall  ever  be  required 
as  a  qualification  to  any  office  or  public  trust  under  the  United 
States. 

ARTICLE  VII. 

1.  The  ratification  of  the  conventions  of  nine  states,  shall 
be  sufficient  for  the  establishment  of  this  Constitution  between 
the  states  so  ratifying  the  same. 


THE  CONSTITUTION.  XXXI 


AMENDMENTS  TO  THE  CONSTITUTIOx\. 


ARTICLE  I. 

Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof;  or  abridging 
the  freedom  of  speech,  or  of  the  press;  or  the  right  of  the 
people  peaceably  to  assemble,  and  to  petition  the  government 
for  a  redress  of  grievances. 

ARTICLE  II. 

A  well  regulated  militia  being  necessary  to  the  security  of 
a  free  state,  the  right  of  the  people  to  keep  and  bear  arms 
shall  not  be  infringed. 

ARTICLE  III. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner ;  nor  in  time  of  war, 
but  in  a  manner  to  be  prescribed  by  law. 

ARTICLE  IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated  ;  and  no  warrants  shall  issue,  but  upon 
probable  cause,  supported  by  oath  or  affirmation,  and  particu- 
larly describing  the  place  to  be  searched,  and  the  persons  or 
things  to  be  seized. 

ARTICLE  V. 

No  person  shall  be  held  to  answer  for  a  capital  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a 
grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  militia,  when  in  actual  service,  in  time  of  war  or 
public  danger ;  nor  shall  any  person  be  subject  for  the  same 
offence  to  be  twice  put  in  jeopardy  of  life  or  limb  ;  nor  shall 


XXXll  THE  CONSTITUTION. 

be  compelled,  in  any  criminal  case,  to  be  a  witness  against 
himself,  nor  be  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law  ;  nor  shall  private  property  be  taken  for 
public  use  without  just  compensation. 

ARTICLE  VI. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right 
to  a  speedy  and  pubhc  trial,  by  an  impartial  jury  of  the  state 
and  district  wherein  the  crime  shall  have  been  committed, 
which  district  shall  have  been  previously  ascertained  by  law  ; 
and  to  be  informed  of  the  nature  and  cause  of  the  accusation ; 
to  be  confronted  with  the  witnesses  against  him  ;  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favour ;  and  to 
have  the  assistance  of  counsel  for  his  defence.* 

ARTICLE  VII. 

In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be 
preserved  ;  and  no  fact  tried  by  a  jury  shall  be  otherwise  re- 
examined in  any  court  of  the  United  States,  than  according  to 
the  rules  of  the  common  law. 

ARTICLE  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  and  unusual  punishments  inflicted. 

ARTICLE  IX. 

The  enumeration  in  the  Constitution  of  certain  rights,  shall 
not  be  construed  to  deny  or  disparage  others  retained  by  the 
people. 

ARTICLE  X. 

The  powers  not  delegated  to  the  United  States  by  the  Con- 
stitution, nor  prohibited  by  it  to  the  states,  are  reserved  to  the 
states  respectively,  or  to  the  people. 


OF 


THE    CONSTITUTION.  XXXUl 

ARTICLE  XL 


The  judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  equity,  commenced  or 
prosecuted  against  one  of  the  United  States  by  citizens  of  an- 
other state,  or  by  citizens  or  subjects  of  any  foreign  state* 

ARTICLE  XIL 

1.  The  electors  shall  meet  in  their  respective  states,  and 
vote  by  ballot  for  president  and  vice-president,  one  of  whom, 
at  least,  shall  not  be  an  inhabitant  of  the  same  state  with  them- 
selves ;  they  shall  name   in  their  ballots  the  person  voted  for 
as  president,  and  in  distinct  ballots  the  person  voted  for  as 
vice-president ;  and  they  shall  make  distinct  lists  of  all  persons 
voted  for  as  president,  and  of  all  persons   voted  for  as   vice- 
president,  and  of  the  number  of  votes  for  each,  which  lists  they 
shall  sign   and  certify,  and  transmit  sealed  to  the  seat  of  the 
government  of  the  United  States,  directed  to  the  president  of 
the  senate  ;  the  president  of  the  senate  shall,  in  the  presence 
of  the  senate  and  house  of  representatives,  open  all  the  certifi- 
cates, and  the  votes  shall  then  be  counted  :  the  person  having 
the  greatest  number  of  votes  for  president,  shall  be  the  presi- 
dent, if  such  number  be  a  majority  of  the  whole  number  of 
electors  appointed ;  and  if  no    person  have  such  majority,  then 
from  the  persons  having  the  highest  numbers,  not  exceeding 
three,  on  the  list  of  those   voted  for  as  president,  the  house  of 
representatives  shall  choose  immediately,  by  ballot,  the  presi- 
dent.    But  in  choosing  the  president,   the  votes  shall  be  taken 
by  states,  the  representation  from  each  state  having  one  vote  ; 
a  quorum  for  this  purpose  shall  consist  of  a  member  or  mem- 
bers from  two  thirds  of  the  states,   and  a  majority  of  all  the 
states  shall  be  necessary  to  a  choice.     And  if  the  house  of  rep- 
resentatives shall  not  choose  a  president,  whenever  the  right  of 
choice  shall  devolve   upon  them,  before  the    fourth   day  of 
March  next  following,  then  the  vice-president  shall  act  as  presi- 
dent, as  in  the  case  of  the  death  or  other  constitutional   disa- 
bility of  the  president. 

Abr.  E 


XXXIV  THE    CONSTITUTIOir.      . 

2.  The  person  having  the  greatest  number  of  votes  as  vice- 
president,  shall  be  the  vice-president,  if  such  number  be  a 
majority  of  the  v\rhole  number  of  electors  appc^nted  ;  and  if 
no  person  have  a  majority,  then  from  the  two  highest  num- 
bers on  the  list,  the  senate  shall  choose  the  vice-president :  a 
quorum  for  the  purpose  shall  consist  of  two-thirds  of  the  whole 
number  of  senators,  a  majority  of  the  whole  number  shall  be 
necessary  to  a  choice. 

3.  But  no  person  constitutionally  ineligible  to  the  office  of 
president,  shall  be  eligible  to  that  of  vice-president  of  the 
United  States. 


TABLE  OF  SECTIONS. 


This  Table  shows  the  Sections  of  the  Abridgment  correspond- 
ing with  those  of  the  original  work.  The  intermediate 
omitted  sections  are  generally  illustrative  of  the  preceding 
sections. 


Abr. 

Grig. 

Abr. 

Orig. 

Abr. 

Orig. 

1   . 

1 

29  . 

79 

57  . 

.  123 

2  . 

.   2 

30  .  . 

80 

68  . 

124 

3  . 

.   3 

31  . 

82 

59  . 

.  126 

4  . 

.   5 

32  . 

83 

60  . 

127 

5  . 

.   6 

33  . 

.   84 

61  . 

.  128 

6  . 

.   7 

34  . 

85 

62  . 

.  131 

7  . 

.  39 

35  . 

86 

63  . 

132 

8  . 

.  41 

36  . 

87 

64  . 

.  134 

9  . 

.  45 

37  . 

88 

65  . 

.  135 

10  . 

.  46 

38  .  , 

94 

66  . 

.  136 

11  . 

.  48 

39  . 

95 

67  . 

,  137 

12  . 

.  49 

40  . 

.   96 

68  . 

.  138 

13  . 

.  52 

41  . 

.   99 

69  . 

.  139 

14  . 

.  53 

42  . 

101 

70  . 

143 

15  . 

.  54 

43  .  , 

103 

71  . 

144 

16  . 

.  55 

44  .  , 

104 

72  . 

146 

17  . 

.  56 

45  . 

105 

73  . 

147 

18  . 

.  57 

46  . 

111 

74  . 

'  148 

19  . 

.  58 

47  . 

112 

75  . 

149 

20  . 

.  61 

48  . 

113 

76  . 

150 

21  . 

.  62 

49  . 

.  115 

77  . 

151 

22  . 

.  63 

50  . 

.  116 

78  . 

156 

23  . 

.  64 

51  .  . 

117 

79  . 

157 

24  . 

.  65 

52  .  . 

118 

80  . 

158 

25  . 

.  67 

53  . 

119 

81  . 

.  159 

26  . 

.  70 

54  .  . 

120 

82  .  . 

160 

27  . 

.  71 

55  . 

121 

83  .  . 

161 

28  . 

.  78 

56  . 

122 

84  . 

162 

XXXVl  TABLE    OF    SECTIONS. 


Abf. 

Ofig, 

Abr. 

Orig. 

Abr. 

Orig 

85  . 

.  163 

125  . 

.  258 

165  . 

.  375 

86  . 

.  164 

126  . 

.  259 

166  . 

.  376 

87  . 

.  165 

127  . 

.  261 

167  . 

.  377 

88'  . 

.  166 

128  . 

.  265 

168  . 

.  378 

89  . 

.  175 

129  . 

.  268 

169  . 

.  383 

90  . 

.  177 

130  . 

.  270 

170  . 

.  384 

91  . 

.  178 

131  . 

.  272 

171  . 

.  385 

92  . 

.  183 

132  . 

.  273 

172  . 

.  386 

93  . 

.  184 

133  . 

.  274 

173  . 

.  387 

94  . 

.  185 

134  . 

.  275 

174  . 

.  388 

95  . 

.  186 

135  . 

.  277 

175  . 

.  391 

96  • 

.  187 

136  . 

.  278 

176  . 

.  391 

97  . 

.  188 

137  . 

.  279 

177  . 

.  392 

98  . 

.  189 

138  . 

.  280 

178  . 

.  397 

99  . 

.  190 

139  . 

.  281 

179  . 

.  398 

100  . 

.  192 

140  . 

.  293 

180  . 

.  399 

101  . 

.  193 

141  . 

.  294 

181  . 

.  400 

102  . 

.  197 

142  . 

.  296 

182  . 

.  401 

103  . 

.  198 

143  . 

.  297 

183  . 

.  405 

104  . 

.  200 

144  . 

.  300 

184  . 

.  407 

105  . 

.  201 

145  . 

.  301 

185  . 

.  408 

106  . 

.  202 

146  . 

.  302 

186  . 

.  409 

107  . 

.  203 

147  . 

.  303 

187  . 

.  416 

108  . 

.  204 

.   148  . 

.  306 

188  . 

.  419 

109  . 

.  205 

149  . 

.  307 

189  . 

.  420 

110  . 

.  215 

150  . 

.  308 

190  . 

.  422 

Ill  . 

.  217 

151  . 

.  350 

191  . 

.  424 

112  . 

.  218 

152  . 

.  351 

192  . 

.  425 

113  . 

.  220 

153  . 

.  352 

193  . 

.  426 

114  . 

.  222 

154  . 

.  353 

194  . 

.  428 

115  . 

.  223 

155  . 

.  354 

195  . 

.  429 

116  . 

.  224 

156  . 

.  355 

196  . 

.  430 

117  . 

.  225 

157  . 

.  356 

197  . 

.  433 

118  . 

.  243 

158  . 

.  357 

198  . 

.  435 

119  . 

.  248 

159  . 

.  358 

199  . 

.  436 

120  . 

.  249 

160  . 

.  370 

200  . 

.  437 

121  . 

.  250 

161  . 

.  371 

201  . 

.  439 

122  . 

.  252 

162  . 

.  372 

202'  . 

.  440 

123  . 

.  253 

163  . 

.  373 

203  . 

.  441 

124  . 

.  254 

164  . 

.  374 

204  . 

.  444 

TABLE  OF  SECTIONS. 


Abr. 

Orig. 

205  . 

.  445 

206  . 

.  446 

207  . 

.  448 

208  . 

.  449 

209  . 

.  450 

210  . 

.  451 

211  . 

.  452 

212  . 

.  453 

213  . 

.  454 

214  . 

.  455 

215  . 

.  456 

216  . 

.  457 

217  . 

.  458 

218  . 

.  459 

219  . 

.  460 

220  . 

.  461 

221  . 

.  462 

222  . 

.  466 

223  . 

.  467 

224  . 

.  468 

225  . 

.  469 

226  . 

.  470 

227  . 

.  471 

228  . 

.  472 

229  . 

.  475 

230  . 

.  476 

231  . 

.  477 

232  . 

.  478 

233  . 

.  479 

234  . 

.  480 

235  . 

.  481 

236  . 

.  482 

237  . 

.  483 

238  . 

.  483 

239  . 

.  484 

240  . 

.  485 

241  . 

.  486 

242  . 

.  488 

243  . 

.  489 

244  . 

.  491 

Abr. 

Orig. 

245  . 

.  492 

246  . 

.  494 

247  . 

.  495 

248  . 

.  496 

249  . 

.  497 

250  . 

.  498 

251  . 

.  501 

252  . 

.  504 

253  . 

.  505 

254  . 

.  506 

255  . 

.  507 

256  . 

.  508 

257  . 

.  509 

258  . 

.  510 

259  . 

.  511 

260  . 

.  512 

261  . 

.  514 

262  . 

.  516 

263  . 

.  517 

264  . 

.  518 

265  . 

.  519 

266  . 

.  523 

267  . 

.  524 

268  . 

.  542 

269  . 

.  544 

270  . 

.  545 

271  . 

.  546 

272  . 

.  547 

273  . 

.  549 

274  . 

.  550 

275  . 

.  554 

276  . 

.  555 

277  . 

.  556 

278  . 

.  557 

279  . 

.  558 

280  . 

.  560 

281  . 

.  561 

282  . 

.  562 

283  . 

.  563 

284  . 

.  564 

XXXVU 

Abr. 

Orig. 

285 

.  .  565 

286 

.  .  566 

287 

.  .  567 

288 

.  .  568 

289 

.  .  570 

290 

.  .  571 

291 

.  .  572 

292 

.  .  574 

293 

.  .  576 

294 

.  .  577 

295 

.  .  580 

296 

.  .  581 

297 

.  .  582 

298 

.  .  583 

299 

.  .  585 

300 

.  .  586 

301 

.  .  587 

302 

.  .  589 

303 

.  .  590 

304 

.  .  591 

305 

.  .  592 

306 

.  .  593 

307 

.  .  598 

308 

.  .  599 

309 

.  .  600 

310 

.  .  601 

311 

.  .  602 

312 

.  .  607 

313 

.  .  608 

314 

.  .  609 

315 

.  .  610 

316 

.  .  611 

317 

.  .  612 

318 

.  .  614 

319 

.  .  615 

320 

.  .  616 

321 

.  .  617 

322 

.  .  618 

323 

.  .  622 

324 

.  .  629 

XXXVlll  TABLE  OF  SECTIONS. 


Abr. 

Orig. 

Abr. 

Orig. 

Abr. 

Orig. 

325  .  . 

630 

365  . 

.  713 

405  . 

.  797 

326  .  . 

631 

366  . 

.  714 

406  . 

.  801 

327  .  . 

632 

367  . 

.  715 

407  . 

.  810 

328  .  . 

633 

368  . 

.  720 

408  . 

.  812 

329  .  . 

634 

369  . 

.  721 

409  . 

.  813 

330  .  . 

635 

370  . 

.  722 

410  . 

.  814 

331  .  . 

641 

371  . 

.  725 

411  . 

.  823 

332  .  . 

642 

372  . 

.  726 

412  . 

.  826 

333  .  . 

643 

373  . 

.  727 

413  . 

.  827 

334  .  . 

644 

374  . 

.  728 

414  . 

.  829 

335  .  . 

^5 

375  . 

.  729 

415  . 

.  830 

336  .  . 

646 

376  . 

.  730 

416  . 

.  831 

337  .  . 

647 

377  . 

.  731 

417  . 

.  832 

338  .  . 

671 

378  . 

.  732 

418  . 

.  834 

339  .  . 

674 

379  . 

.  734 

419  . 

.  835 

340  .  . 

675 

380  . 

.  735 

420  . 

.  837 

341  .  . 

676 

381  . 

.  736 

421  . 

.  838 

342  .  . 

677 

382  . 

.  739 

422  . 

.  840 

343  .  . 

682 

383  . 

.  740 

423  . 

.  841 

344  .  . 

683 

384  . 

.  743 

424  . 

.  842 

345  .  . 

684 

385  . 

.  744 

425  . 

.  843 

346  .  . 

685 

386  . 

.  745 

426  . 

.  844 

347  .  . 

686 

387  . 

.  773 

427  ; 

.  846 

348  .  . 

687 

388  . 

.  774 

428  . 

.  847 

349  .  . 

688 

389  . 

.  775 

429  . 

.  848 

350  .  . 

689 

390  . 

.     776 

430  . 

..  850 

351  .  . 

690 

391  . 

.  777 

431  . 

.  851 

352  .  . 

691 

392  . 

.  779 

432  . 

.  852 

353  .  . 

692 

393  . 

.  780 

433  . 

.  854 

354  .  . 

695 

394  . 

.  781 

434  . 

.  855 

355  .  . 

699  ; 

395  . 

.  782 

435  . 

.  856 

356  .  . 

700 

396  . 

.  783 

436  . 

.  860 

357 

701   - 

397  . 

.  784 

437  . 

.  861 

358  #^ 

359  .  * 

703 

398  . 

.  786  ^- 

438  . 

.  862 

704 

399  . 

.  787 

439  . 

.  863 

360  .  . 

705 

400  . 

.  788 

440  . 

.  864 

361  .  . 

707 

401  . 

.  789 

441  . 

.  866 

362  .  . 

710 

402  . 

.  790 

442  . 

.  867 

363  .  . 

711 

403  . 

.  794 

443  . 

.  869 

364  .  . 

712 

404  . 

.  795   . 

444  . 

.  870 

TABLE  OF 

SECTIONS. 

xxxix 

Abr. 

Orig. 

Abr. 

Orig. 

Abr. 

Orig. 

445  . 

.  871 

485  . 

.  972 

525  . 

1075 

446  . 

.  873 

486  . 

.  973 

526  . 

.  1076 

447  . 

.  874 

487  . 

.  974 

527  . 

.  1077 

448  . 

.  878 

488  . 

.  975 

528  . 

.  1079 

449  . 

.  879 

489  . 

.  988 

529  . 

.  1080 

450  . 

.  881 

490  . 

.  990 

530  . 

.  1087 

451  . 

.  882 

491  . 

.  991 

531  . 

1089 

452  . 

.  883 

492  . 

.  992 

532  . 

1092 

453  . 

.  885 

493  . 

.  993 

533  . 

1094 

454  . 

.  887 

494  . 

.  994 

534  . 

.  1095 

455  . 

.  888 

495  . 

.  1010 

535  . 

1096 

456  . 

.  889 

496  . 

.  1011 

536  . 

1097 

457  . 

.  898 

497  . 

.  1013 

537  . 

1098 

458  . 

.  899 

498  . 

.  1014 

538  . 

1099 

459  . 

.  900 

499  . 

.  1015 

'539  . 

1101 

460  . 

.  901 

500  . 

.  1029 

540  . 

1102 

461  . 

.  902 

501  . 

.  1030 

541  . 

1103 

462  . 

.  903 

502  . 

.  1042 

542  . 

1104 

463  . 

.  904 

503  . 

.  1049 

543  . 

1106 

464  . 

.  905 

504  . 

.  1050 

544  . 

1109 

465  . 

.  928 

505  . 

.  1051 

545  . 

1110 

466  . 

.  929 

506  . 

.  1052 

546  . 

1111 

467  . 

.  930 

507  . 

.  1053 

547  . 

1112 

468  . 

.  931 

508  . 

,  1054 

548  . 

1113 

469  . 

.  933 

509  . 

.  1056 

549  . 

1117 

470  . 

.  940 

510  . 

.  1057 

550  . 

1118 

471  . 

.  946 

511  . 

.  1058 

551  . 

1119 

472  . 

.  947 

512  . 

.  1059 

552  . 

1120 

473  . 

.  948 

513  . 

.  1060 

553  . 

1123 

474  . 

.  949 

514  . 

.  1061 

554  . 

1131 

475  . 

.  950 

515  . 

.  1062 

555  . 

1134 

476  . 

.  951 

516  . 

.  1063 

556  . 

1145 

477  . 

.  952 

517  . 

.  1064 

557  . 

1146 

478  . 

.  953 

518  . 

.  1065 

558  . 

1147 

479  . 

.  954 

519  . 

.  1066 

559  . 

1148 

480  . 

.  955 

520  . 

.  1068 

560  . 

1151 

481  . 

.  960 

521  . 

.  1070 

561  . 

1152 

482  . 

.  961 

522  . 

.  1071 

562  . 

1154 

483  . 

.  962 

523  . 

.  1072 

563  .  . 

1155 

484  . 

.  963 

524  . 

.  1073 

564  .  . 

1157 

xl 


TABLE  OF  SECTIONS. 


Abr. 

Orig. 

Abr. 

Orig. 

Abr. 

Orig. 

565    . 

.  1158 

605  . 

.  1240 

645  . 

.  1289 

566    . 

1159 

606  . 

.  1241 

646  . 

.  1285 

567    . 

1163 

607  . 

.  1242 

647  . 

,  1286 

568  . 

1164   ' 

608  . 

.  1243 

648  . 

.  1288 

569  . 

1165 

609  . 

.  1244 

649  . 

.  1289 

570  . 

1166 

610  . 

.  1245 

650  . 

.  1290 

571  . 

1167 

611  . 

.  1246 

651  . 

.  1291 

572  . 

1170 

612  . 

.  1247 

652  . 

.  1292 

573  . 

1171 

613  . 

.  1248 

653  . 

.  1293 

574  . 

1173 

614  . 

.  1249 

654  . 

.  1294 

575  . 

1174 

615  . 

.  1250 

655  . 

.  1295 

576  . 

1175 

616  . 

.  1251 

656  . 

.  1297 

577  . 

1178 

617  . 

.  1252 

657  . 

.  1299 

578  . 

1180 

618  . 

.  1253 

658  . 

.  1300 

579  . 

1188 

619  . 

.  1254 

659  . 

.  1301 

580  . 

1189 

620  . 

.  1255 

660  . 

.  1302 

581  . 

1190 

621  . 

.  1256 

661  . 

.  1302 

582  . 

1191 

622  . 

.  1257 

662  . 

.  1308 

583  . 

1192 

623  . 

.  1258 

663  . 

.  1310 

584  . 

1193 

624  . 

.  1259 

664  . 

.  1313 

585  . 

1194 

625  . 

.  1260 

665  . 

.  1316 

586.  .  . 

1195 

626  . 

.  1261 

666  . 

.  1318 

587  . 

1196 

627  . 

.  1262 

667  . 

.  1319 

588  . 

1198 

628  . 

.  1264 

668  . 

.  1322 

589  . 

1199 

629  . 

.  1265 

669  . 

.  1323 

590  .  . 

1204 

630  . 

.  1266 

670  . 

.  1324 

591  . 

1205 

631  . 

^  1267 

671  . 

.  1325 

592  . 

1206 

632  . 

.1268 

672  . 

.  1326 

593  .  . 

1208 

633  . 

.  1269 

673  . 

.  1328 

594  . 

1211 

634  . 

.  1270 

674  . 

.  1332 

595  .  . 

1213 

635  . 

.  1271 

675  . 

.  1333 

596  . 

1214 

636  . 

.  1272 

676  . 

.  1336 

597  .  . 

1219 

637  . 

.  1273 

677  . 

.  1337 

598  . 

1220 

638  . 

.  1274 

678  . 

.  1338 

599  .  . 

1221 

639  , 

.  1275 

679  . 

.  1339 

600  . 

1231' 

640  , 

.  1277 

680  . 

.  1340 

601  . 

1232 

641  . 

.  1278 

681  . 

.  1342 

602  . 

1237 

642  . 

.  1279 

682  . 

.  1344 

603  . 

1238 

643  . 

.  1280 

683  . 

.  1345 

604  .  . 

1239 

644  . 

.  1281 

684  . 

.  1346 

TABLE  OF  SECTIONS.  xli 


Abr. 

Orig. 

Abr. 

Orig. 

Abr. 

Orig. 

685  . 

.  1347 

725  . 

.  1414 

765  . 

.  1481 

686  . 

.  1348 

726  . 

.  1415 

766  . 

.  1483 

687  . 

.  1349 

727  . 

.  1417 

767  . 

.  1484 

688  . 

.  1350 

728  . 

.  1419 

768  . 

.  1485 

689  . 

.  1351 

729  . 

.  1420 

769  . 

.  1487 

690  . 

.  1352 

730  . 

.  1424 

770  . 

.  1488 

691  . 

.  1355 

731  . 

.  1427 

771  . 

.  1491 

692  . 

.  1357 

732  . 

.  1428 

'   772  . 

.  1492 

693  . 

.  1358 

733  . 

.  1432 

773  . 

.  1495 

694  . 

.  1365 

734  . 

.  1435 

774  . 

.  1497 

695  . 

.  1367 

'  735  . 

.  1436 

775  . 

.  1498 

696  . 

.  1368 

736  . 

.  1437 

776  . 

.  1499 

697  . 

.  1370 

737  . 

.  1438 

777  . 

.  1502 

698  . 

.  1371 

738  . 

.  1439 

778  . 

.  1503 

699  . 

.  1372 

739  . 

.  1441 

779  . 

.  1504 

700  . 

.  1374 

740  . 

.  1443 

780  . 

.  1505 

701  . 

.  1375 

741  . 

.  1444 

781  . 

.  1506 

702  . 

.  1376 

742  . 

.  1446 

782  . 

.  1507 

703  . 

.  1379 

743  . 

.  1447 

783  . 

.  1517 

704  . 

.  1380 

744  . 

.  1448 

784  . 

.  1518 

705  . 

.  1381 

745  . 

.  1451 

785  . 

.  1519 

706  . 

.  1385 

746  . 

.  1452 

786  . 

.  1521 

707  . 

.  1386 

747  . 

.  1458 

787  . 

.  1522 

708  . 

.  1387 

748  . 

.  1460 

788  . 

.  1523 

709  . 

.  1388 

749  . 

.  1461 

789  . 

.  1524 

710  . 

.  1390 

750  . 

.  1462 

790  . 

.  1525 

711  . 

.  1392 

751  . 

.  1463 

791  . 

.  1526 

712  . 

.  1393 

752  . 

.  1466 

792  . 

.  1527 

713  . 

.  1394 

753  . 

.  1467 

793  . 

.  1529 

714  . 

.  1395 

754  . 

,  1468 

794  . 

.  1530 

715  . 

.  1396 

755  . 

.  1469 

795  . 

.  1531 

716  . 

.  1398 

756  . 

.  1470 

796  . 

.  1532 

717  . 

.  1401 

757  . 

.  1471 

797  . 

.  1533 

718  . 

.  1402 

758  . 

.  1472 

798  . 

.  1535 

719  . 

.  1404 

759  . 

.  1473 

799  . 

.  1537 

720  . 

.  1406 

760  . 

.  1474 

800  . 

.  1538 

721  . 

.  1409^ 

761  . 

.  1475 

801  . 

.  1539 

722  . 

.  1410 

762  . 

.  1478 

802  . 

.  1540 

723  . 

.  1411 

763  . 

.  1479 

803  . 

.  1549 

724  . 

.  1412 

764  . 

.  1480 

804  . 

.  1551 

Mr, 

F 

Xlii  TABLE  OF  SECTIONS. 


Abr. 

Orig. 

Abr. 

Orig. 

Abr. 

Orig. 

805  . 

.  1552 

845  . 

.  1623 

885  . 

.  1688 

806  . 

.  1554 

846  . 

.  1624 

886  . 

.  1689 

807  . 

.  1555 

847  . 

.  1625 

'887  . 

.  1690 

808  . 

.  1556 

848  . 

.  1629 

888  . 

.  1691 

809  . 

.  1557 

849  . 

.  1630 

889  . 

.  1692 

810  . 

.  1558 

850  . 

.  1631 

890  . 

.  1693 

811  . 

.  1559 

851  . 

.  1634 

891  . 

.  1694 

ai2   . 

.  1560 

852  . 

.  1635   ' 

892  . 

.  1695 

813  . 

.  1562 

853  . 

.  1636 

893  . 

.  1696 

814  . 

.  1563 

854  . 

.  1637 

894  . 

.  1697 

815  . 

.  1565 

855  . 

.  1639 

895  . 

.  1698 

816  . 

.  1566 

856  . 

.  1640 

896  . 

.  1700 

817  . 

.  1567 

857  . 

.  1641 

897  . 

.  1701 

818  . 

.  1568 

858  . 

.  1642 

898  . 

.  1702 

819  . 

.  1569 

859  . 

.  1650 

899  . 

.  1716 

820  . 

.  1570 

860  . 

.  1651 

900  . 

.  1717 

821  . 

.  1570 

861  . 

.  1652 

901  . 

.  1724 

822  . 

.  1572 

862  . 

.  1654 

902  . 

.  1725 

823  . 

.  1573 

863  . 

.  1657 

903  . 

.  1726 

824  . 

.  1575 

864  . 

.  1660 

904  . 

.  1728 

825  . 

.  1583 

865  . 

.  1661 

905  . 

.  1730 

826  . 

.  1584 

866  . 

.  1662 

906  . 

.  1731 

827  . 

.  1591 

867  . 

.  1663 

907  . 

.  1732 

828  . 

.  1592 

868  . 

.  1664 

908  . 

.  1736 

829  . 

.  1593 

869  . 

.  1665 

909  . 

.  1737 

830  . 

.  1594 

870'  . 

.  1666 

910  . 

.  1738 

831  . 

.  1604 

871  . 

.  1667 

911  . 

.  1741 

832  . 

.  1605 

872  . 

.  1668 

912  . 

.  1748 

833  . 

.  1606 

873  . 

.  1673 

913  . 

.  1751 

834  . 

.  1607 

874  . 

.  1674 

914  . 

.  1753 

835  . 

.  1608 

875  . 

.  1675 

915  . 

.  1754 

836  . 

.  1609 

876  . 

.  1676 

916  . 

.  1755 

837  . 

.  1610 

877  . 

.  1677 

917  . 

.  1756 

838  . 

.  16LI 

878  . 

.  1678 

918  . 

.  1757 

839  . 

.  1612 

879  . 

.  1679 

919  . 

.  1762 

840  . 

.  1613 

880  . 

.  1680 

920  . 

.  1767 

841  . 

.  1614 

881  . 

.  1682 

921  . 

.  1771 

842  . 

.  1615 

882  . 

.  1684 

922  . 

.  1772 

843  . 

.  1621 

883  . 

.  1685 

923  . 

.  1773 

844  . 

.  1622 

884  . . 

.  1687 

924  . 

.  1774 

TABLE  OF  SECTIONS.  xliii 


Abr. 

Orig. 

Abr. 

Orig. 

Abr. 

Orig. 

925  . 

.  1775 

956  . 

.  1821 

987  . 

.  1866 

926  . 

.  1776 

957  . 

.  1822 

988  . 

.  1868 

927  . 

.  1777 

958  . 

.  1823 

989  . 

.  1869 

928  . 

.  1778 

959  . 

.  1824 

990  . 

.  1870 

929  . 

.  1779 

960  . 

.  1825 

991  . 

.  1871 

930  . 

.  1781 

961  . 

.  1826 

992  . 

.  1873 

931  . 

.  1782 

962  . 

.  1827 

993  . 

.  1874 

932  . 

.  1783 

963  . 

.  1828 

994  . 

.  1875 

933  . 

.  1784 

964  . 

.  1830 

995  . 

.  1878 

934  . 

.  1785 

965  . 

.  1831 

996  . 

.  1883 

935  . 

.  1786 

966  . 

.  1832 

997  . 

.  1886 

936  . 

.  1787 

967  . 

.  1836 

998  . 

.  1887 

937  . 

.  1788 

968  . 

.  1837 

999  . 

.  1888 

938  . 

.  1789 

969  . 

.  1838 

1000  . 

.  1889 

939  . 

.  1790 

970  . 

.  1839 

1001  . 

.  1890 

940  . 

.  1791 

971  . 

.  1841 

1002  . 

.  1892 

941  . 

.  1792 

972  . 

.  1843 

1003  . 

.  1893 

942  . 

.  1793 

973  . 

.  1844 

1004  . 

.  1894 

943  . 

.  1796 

974  . 

.  1845 

1005  . 

.  1895 

944  . 

.  1797 

975  . 

.  1850 

1006  . 

.  1896 

945  . 

.  1798 

976  . 

.  1851 

1007  . 

.  1898 

946  , 

.  1799 

977  . 

.  1852 

1008  . 

.  1899 

947  . 

.  1800 

978  . 

.  1856 

1009  . 

.  1900 

948  . 

.  1801 

979  . 

.  1857 

1010  . 

.  1901 

949  . 

.  1802 

980  . 

.  1858 

1011  . 

.  1902 

950  . 

.  1803 

981  . 

.  1859 

1012  . 

.  1903 

951  . 

.  1804 

982  . 

.  1860 

1013  . 

.  1904 

952  . 

.  1805 

983  . 

.  1862 

1014  . 

.  1905 

953  . 

.  1807 

984  . 

.  1863 

1015  . 

.  1906 

954  . 

.  1808 

985  . 

.  1864 

1016  . 

.  1907 

955  . 

.  1820 

986  . 

.  1865 

COMMENTARIES. 


PRELIMINARY    CHAPTER. 

PLAN    OF    THE    WORK. 

The   principal    object  of  these   Commentaries    is 
to  present  a  full  analysis  and  exposition  of  the  Con- 
stitution of    Government    of    the    United   States  of 
America.     In  ord^r  to  do  this  with  clearness  and  accu- 
racy, it  is  necessary  to  understand,  what  was  the  politi- 
cal position  of  the  several  States,  composing  the  Union, 
in  relation  to  each  other  at  the  time  of  its  adoption. 
This  will  naturally  conduct  us  back  to  the  American 
Revolution  ;  and  to  the  formation  of  the  Confederation 
consequent  thereon.     But  if  we  stop  here,  we  shall  still 
be  surrounded  with  many  difficulties  in  regard  to  our 
domestic  institutions  and  policy,  which  have  grown  out 
of  transactions  of  a  much  earlier  date,  connected  on  one 
side  with  the  common  dependence  of  all  the  Colonies 
upon  the  British  Empire,  and  on  the  other  with  the  par- 
ticular charters  of  government  and  internal  legislation, 
which  belonged  to  each  Colony,  as  a  distinct  sove- 
reignty, and  which  have  impressed  upon  each  peculiar 
habits,    opinions,    attachments,  and    even  prejudices. 
Traces  of  these  peculiarities  are  every  where  discern- 
ible in  the  actual  jurisprudence  of  each  State ;  and 
are  silently  or  openly  referred  to  in  several  of  the  pro- 

Ahr.  1 


Z  CONSTITUTIONAL   LAW. 

visions  of  the  Constitution  of  the  United  States.  In 
short,  without  a  careful  review  of  the  origin  and  consti- 
tutional and  juridical  history  of  all  the  colonies,  of  the 
principles  common  to  all,  and  of  the  diversities,  which 
were  no  less  remarkable  in  all,  it  would  be  impossible 
fully  to  understand  the  nature  and  objects  of  the  Con- 
stitution; the  reasons  on  which  several  of  its  most  im- 
portant provisions  are  founded ;  and  the  necessity  of 
those  concessions  and  compromises,  which  a  desire  to 
form  a  solid  and  perpetual  Union  has  incorporated  into 
its  leading  features. 

The  plan  of  the  work  will,  therefore,  naturally  com- 
prehend three  great  divisions.  The  first  will  embrace  a 
sketch  of  the  charters,  constitutional  history,  and  ante- 
revolutionary  jurisprudence  of  the  Colonies.  The  sec- 
ond will  embrace  a  sketch  of  the  constitutional  histo- 
ry of  the  States  during  the  Revolution,  and  the  rise, 
progress,  decline,  and  fall  of  the  Confederation.  The 
third  will  embrace  the  history  of  the  rise  and  adoption 
of  the  Constitution ;  and  a  full  exposition  of  all  its  pro- 
visions, with  the  reasons,  on  which  they  were  respect- 
ively founded,  the  objections,  by  which  they  were 
respectively  assailed,  and  such  illustrations  drawn  from 
contemporaneous  documents,  and  the  subsequent  op- 
erations of  the  government,  as  may  best  enable  the 
reader  to  estimate  for  himself  the  true  value  of  each. 
In  this  way  (as  it  is  hoped)  his  judgment  as  well  as  his 
affections  will  be  enlisted  on  the  side  of  the  Constitu- 
tion, as  the  truest  security  of  the  Union,  and  the  only 
soUd  basis,  on  which  to  rest  the  private  rights,  the  pub- 
lic liberties,  and  the  substantial  prosperity  of  the  people 
composing  the  American  Republic. 


BOOK  I. 

HISTORY  OF  THE  COLONIES. 


CHAPTER  I. 


ORIGIN  OF  THE    TITLE    TO    TERRITORY    OF    THE 
COLONIES. 

^  1.  The  discovery  of  the  Continent  of  America  by 
Columbus  in  the  fifteenth  century  awakened  the  atten- 
tion of  all  the  maritime  States  of  Europe.  Stimulated 
by  the  love  of  glory,  and  still  more  by  the  hope  of  gain 
and  dominion,  many  of  them  early  embarked  in  adven- 
turous enterprises,  the  object  of  which  was  'to  found 
colonies,  or  to  search  for  the  precious  metals,  or  to  ex- 
change the  products  and  manufactures  of  the  old  world 
for  whatever  was  most  valuable  and  attractive  in  the 
new.  England  was  not  behind  her  continental  neigh- 
bours in  seeking  her  own  aggrandizement,  and  nour- 
ishing her  then  infant  commerce.  The  ambition  of 
Henry  the  Seventh  was  roused  by  the  communications 
of  Columbus,  and  in  1495  he  granted  a  commission  to 
John  Cabot,  an  enterprising  Venetian,  then  settled  in 
England,  to  proceed  on  a  voyage  of  discovery,  and  to 
subdue  and  take  possession  of  any  lands  unoccupied 
by  any  Christian  Power,  in  the  name  and  for  the  bene- 
fit of  the  British  Crown.  In  the  succeeding  year 
Cabot  sailed  on  his  voyage,  and  having  first  discovered 


4  HISTORY    OF    THE    COLONIES.  [bOOK    I. 

the  Islands  of  Newfoundland  and  St  Johns,  he  after- 
wards sailed  along  the  coast  of  the  continent  from  the 
56th  to  the  38th  degree  of  north  latitude,  and  claimed 
for  his  sovereign  the  vast  region,  which  stretches  from 
the  Gulf  of  Mexico  to  the  most  northern  regions. 

^  2.  Such  is  the  origin  of  the  British  tide  to  the  ter- 
ritory composing  these  United  States.  That  tide  was 
founded  on  the  right  of  discovery,  a  right,  which  was 
held  among  the  European  nations  a  just  and  sufficient 
foundation,  on  which  to  rest  their  respective  claims  to 
the  American  continent.  Whatever  controversies  ex- 
isted among  them,  (and  they  were  numerous,)  respect- 
ing the  extent  of  their  own  acquisitions  abroad,  they 
appealed  to  this  as  the  ultimate  fact,  by  which  their 
various  and  conflicting  claims  were  to  be  adjusted.  It 
may  not  be  easy  upon  general  reasoning  to  establish 
the  doctrine,  that  priority  of  discovery  confers  any  ex- 
clusive right  to  territory.  It  was  probably  adopted  by 
the  European  nations  as  a  convenient  and  flexible  rule, 
by  which  to  regulate  their  respective  claims.  For  it 
was  obvious,  that  in  the  mutual  contests  for  dominion 
in  newly  discovered  lands,  there  would  soon  arise  vio- 
lent and  sanguinary  struggles  for  exclusive  possession, 
unless  some  common  principle  should  be  recognised 
by  all  maritime  nations  for  the  benefit  of  all.  None 
more  readily  suggested  itself  than  the  one  now  under 
consideration ;  and  as  it  was  a  principle  of  peace  and 
repose,  of  perfect  equality  of  benefit  in  proportion  to 
the  actual  or  supposed  expenditures  and  hazards  at- 
tendant upon  such  enterprises,  it  received  a  universal 
acquiescence,  if  not  a  ready  approbation.  It  became 
the  basis  of  European  polity,  and  regulated  the  exer- 
cise of  the  rights  of  sovereignty  and  settlement  in  all 
the  cis -Atlantic  Plantations.     In  respect  to  desert  and 


CH.    I.]       ORIGIN    AND    TITLE    TO    TERRITORY.  5 

uninhabited  lands,  there  does  not  seem  any  important 
objection,  which  can  be  urged  against  it.  But  in  re- 
spect to  countries,  then  inhabited  by  the  natives,  it  is 
not  easy  to  perceive,  how,  in  point  of  justice,  or  human- 
ity, or  general  conformity  to  the  law  of  nature,  it  can  be 
successfully  vindicated.  As  a  conventional  rule  it  might 
properly  govern  all  the  nations,  which  recognised  its 
obligation ;  but  it  could  have  no  authority  over  the  ab- 
origines of  America,  whether  gathered  into  civilized 
communities,  or  scattered  in  hunting  tribes  over  the 
wilderness.  Their  right,  whatever  it  was,  of  occupa- 
tion or  use,  stood  upon  original  principles  deducible 
from  the  law  of  nature,  and  could  not  be  justly  narrow- 
ed or  extinguished  without  their  own  free  consent. 

§  3.  There  is  no  doubt,  that  the  Indian  tribes,  in- 
habiting this  continent  at  the  time  of  its  discovery,  main- 
tained a  claim  to  the  exclusive  possession  and  occu- 
pancy of  the  territory  within  their  respective  limits,  as 
sovereigns  and  absolute  proprietors  of  the  soil.  They 
acknowledged  no  obedience,  or  allegiance,  or  subordi- 
nation to  any  foreign  sovereign  whatsoever ;  and  as  far 
as  they  have  possessed  the  means,  they  have  ever  since 
asserted  this  plenary  right  of  dominion,  and  yielded  it 
up  only  when  lost  by  the  superior  force  of  conquest,  or 
transferred  by  a  voluntary  cession. 

^  4.  The  European  nations  found  httle  difficulty  in 
reconciling  themselves  to  the  adoption  of  any  principle, 
which  gave  ample  scope  to  their  ambition,  and  employ- 
ed little  reasoning  to  support  it.  They  were  content 
to  take  counsel  of  their  interests,  their  prejudices,  and 
their  passions,  and  felt  no  necessity  of  vindicating  their 
conduct  before  cabinets,  which  were  already  eager  to 
recognise  its  justice  and  its  policy.  The  Indians  were 
a  savage  race,  sunk  in  the  depths  of  ignorance  and 


6  HISTORY    OF    THE    COLONIES.  [bOOK    I. 

heathenism.  If  they  might  not  be  extirpated  for  their 
want  of  religion  and  just  morals,  they  might  be  reclaim- 
ed from  their  errors.  They  were  bound  to  yield  to  the 
superior  genius  of  Europe,  and  in  exchanging  their 
wild  and  debasing  habits,  for  civilization  and  Christiani- 
ty they  were  deemed  to  gain  more  than  an  equivalent 
for  every  sacrifice  and  suffering.  The  Papal  authority, 
too,  was  brought  in  aid  of  these  great  designs  ;  and  for 
the  purpose  of  overthrowing  heathenism,  and  propagat- 
ing the  Catholic  religion,  Alexander  the  Sixth,  by  a 
Bull  issued  in  1493,  granted  to  the  crown  of  Castile  the 
whole  of  the  immense  territory  then  discovered,  or  to 
be  discovered,  between  the  poles,  so  far  as  it  was  not 
then  possessed  by  any  Christian  prince. 

^  5.  The  principle,  then,  that  discovery  gave  title 
to  the  government,  by  whose  subjects  or  by  whose  au- 
thority it  was  made,  against  all  other  European  govern- 
ments, being  once  established,  it  followed  almost  as  a 
matter  of  course,  that  every  government  within  the  lim- 
its of  its  discoveries  excluded  all  other  persons  from 
any  right  to  acquire  the  soil,  by  any  grant  whatsoever, 
from  the  natives.  No  nation  would  suffer,  either  its 
own  subjects,  or  those  of  any  other  nation,  to  set  up  or 
vindicate  any  such  title.  It  was  deemed  a  right,  exclu- 
sively belonging  to  the  government,  in  its  sovereign  ca- 
pacity to  extinguish  the  Indian  title,  and  to  perfect  its 
own  dominion  over  the  soil,  and  dispose  of  it  according 
to  its  own  good  pleasure. 

^  6.  It  may  be  asked,  what  was  the  effect  of  this 
principle  of  discovery  in  respect  to  the  rights  of  the  na- 
tives themselves.  In  the  view  of  the  Europeans  it  cre- 
ated a  peculiar  relation  between  themselves  and  the 
aboriginal  inhabitants.  The  latter  were  admitted  to 
possess  a  present  right  of  occupancy,  or  use  in  the  soil. 


CH.    I.]       ORIGIN    AND    TITLE    TO    TERRITORY.  7 

which  was  subordinate  to  the  ultimate  dominion  of  the 
discoverer.  They  were  admitted  to  be  the  rightful 
occupants  of  the  soil,  with  a  legal,  as  well  as  just  claim 
to  retain  possession  of  it,  and  to  use  it  according  to 
their  own  discretion.  In  a  certain  sense,  they  were 
permitted  to  exercise  rights  of  sovereignty  over  it. 
They  might  sell  or  transfer  it  to  the  sovereign,  who  dis- 
covered it ;  but  they  were  denied  the  authority  to  dis- 
pose of  it  to  any  other  persons ;  and  until  such  a  sale 
or  transfer,  they  were  generally  permitted  to  occupy  it 
as  sovereigns  de  facto.  But,  notwithstanding  this 
occupancy,  the  European  discoverers  claimed  and 
exercised  the  right  to  grant  the  soil,  while  yet  in 
possession  of  the  natives,  subject  however  to  their 
right  of  occupancTy ;  and  the  title  so  granted  was  uni- 
versally admitted  to  convey  a  sufficient  title  in  the  soil 
to  the  grantees  in  perfect  dominion,  or,  as  it  is.  some- 
times expressed  in  treatises  of  public  law,  it  was  a 
transfer  of  plenum  et  utile  dominium. 


8     ORIGIN  AND  SETTLEMENT  OF  VIRGINIA.      [BOOK  I. 

CHAPTER  11. 

ORIGIN  AND  SETTLEMENT  OF  VIRGINIA. 

^  7.  Having  thus  traced  out  the  origin  of  the  title 
to  the  soil  of  America  asserted  by  the  European  na- 
tions, we  may  now  enter  upon  a  consideration  of  the 
manner  in  which  the  settlements  were  made,  and  the 
political  constitutions,  by  which  the  various  Colonies 
were  organized  and  governed. 

§  8.  The  first  permanent  settlement  made  in  Amer- 
ica, under  the  auspices  of  England,  was  under  a  charter 
granted  to  Sir  Thomas  Gates  and  his  associates  by 
James  the  First,  in  the  fourth  year  after  his  accession  to 
the  throne  of  England  (in  1606.)  That  charter  grant- 
ed to  them  the  territories  in  America,  then  commonly 
called  Virginia,  lying  on  the  sea-coast  between  the  34th 
and  the  45th  degrees  of  north  latitude  and  the  islands 
adjacent  within  100  miles,  which  were  not  belonging 
to,  or  possessed  by  any  Christian  prince  or  people. 
The  associates  were  divided  into  two  companies,  one 
of  which  was  required  to  setde  between  the  34th  and 
41st  degrees  of  north  latitude,  and  the  other  between 
the  38th  and  45th  degrees  of  north  latitude,  but  not 
within  100  miles  of  the  prior  colony.  By  degrees,  the 
name  of  Virginia  was  confined  to  the  first  or  south  col- 
ony. The  second  assumed  the  name  of  the  Plymouth 
Company,  from  the  residence  of  the  original  grantees ; 
and  New-England  was  founded  under  their  auspices. 
Each  colony  had  exclusive  propriety  in  all  the  territory 
within  fifty  miles  from  the  first  seat  of  their  plantation. 

^  9.  The  charter  of  the  first  or  Virginia  colony  was 
successively  altered  in  1609  and   1612,  without  any 


CH.    II.}     ORIGm  AND  SETTLEMENT  OP  vri^GmiA.  9 

important  change  in  its  substantial  provisions,  as  to  the 
civil  or  political  rights  of  the  colonists.  It  is  surprising, 
indeed,  that  charters,  securing  such  vast  powers  to  the 
crown,  and  such  entire  dependence  on  the  part  of  the 
emigrants,  should  have  found  any  favour  in  the  eyes 
either  of  the  proprietors,  or  of  the  people.  By  placing 
the  whole  legislative  and  executive  powers  in  a  council 
nominated  by  the  crown,  and  guided  by  its  instructions, 
every  person  settling  in  America  seems  to  have  been 
bereaved  of  the  noblest  privileges  of  a  free  man.  But 
without  hesitation  or  reluctance,  the  proprietors  of 
both  colonies  prepared  to  execute  their  respective 
plans ;  and  under  the  authority  of  a  charter,  which 
w^ould  now  be  rejected  with  disdain,  as  a  violent  inva- 
sion of  the  sacred  and  inalienable  rights  of  liberty,  the 
first  permanent  settlements  of  the  EngHsh  in  America- 
were  established.  From  this  period  the  progress  of 
the  two  provinces  of  Virginia  and  New-England  form  a 
regular  and  connected  story.  The  former  in  the  South, 
and  the  latter  in  the  North,  may  be  considered  as  the 
original  and  parent  colonies,  in  imitation  of  which,  and 
under  w^hose  shelter,  all  the  others  have  been  succes- 
sively planted  and  reared. 

^  10.  The  settlements  in  Virginia  were  earliest  iii 
point  of  date,  and  were  fast  advancing  under  a  policy, 
which  subdivided  the  property  among  the  settlers,  in- 
stead of  retaining  it  in  common,  and  thus  gave  vigour 
to  private  enterprise.  As  the  colony  increased,  the  spir- 
it of  its  members  assumed  more  and  more  the  tone  of 
independence;  and  they  grew  restless  and  impatient  for 
the  privileges  enjoyed  under  the  government  of  their 
native  country.  To  quiet  this  uneasiness.  Sir  George 
Yeardley,  then  the  governor  of  the  colony,  in  1619, 
called  a  general  assembly,  composed   of  representa- 

Abr.  2 


10  HISTORY  OF  THE  COLONIES.  [bOOK  I* 

lives  from  the  various  plantations  in  the  colony,  and 
permitted  them  to  assume  and  exercise  the  high  func- 
tions of  legislation.  Thus  was  formed  and  established 
the  first  representative  legislature,  that  ever  sat  in 
America.  The  conduct  of  the  colonists,  as  v^ell  as 
the  company,  soon  afterwards  gave  oftence  to  King 
James ;  and  the  disasters,  w^hich  accomplished  an  al- 
most total  destruction  of  the  colony  by  the  successful 
inroads  of  the  Indians,  created  much  discontent  and 
disappointment  among  the  proprietors  at  home.  The 
king  found  it  no  difficult  matter  to  satisfy  the  nation, 
that  an  inquiry  into  their  conduct  was  necessary.  It 
was  accordingly  ordered ;  and  the  result  of  that  in- 
quiry, by  commissioners  appointed  by  himself,  was  a 
demand,  on  the  part  of  the  crown,  of  a  surrender  of 
the  charters.  The  demand  was  resisted  by  the  com- 
pany; a  quo  warranto  was  instituted  against  them, 
and  it  terminated,  as  in  that  age  it  might  well  be  sup- 
posed it  would,  in  a  judgment,  pronounced  in  1624 
by  judges  holding  their  offices  d^uring  his  pleasure, 
that  the  franchises  were  forfeited  and  the  corpora- 
tion should  be  dissolved. 

§  11.  With  the  fall  of  the  charter  the  colony  came 
under  the  immediate  government  and  control  of  the 
crown  itself;  and  the  king  issued  a  special  commission 
appointing  a  governor  and  twelve  counsellors,  to  whom 
the  entire  direction  of  its  affairs  was  committed.  In 
this  commission  no  representative  assembly  was  men- 
tioned ;  and  there  is  little  reason  to  suppose  that  James, 
who,  besides  his  arbitrary  notions  of  government,  im- 
puted the  recent  disasters  to  the  existence  of  such  an 
assembly,  ever  intended  to  revive  it.  While  he  was 
yet  meditating  upon  a  plan  or  code  of  government,  his 
death  put  an  end  to  his  projects,  which  w^ere  better 


CH.    II.]     ORIGIN  AND  SETTLEMENT  OF  VIRGINIA.      11 

calculated  to  nourish  his  own  pride  and  conceit,  than 
to  subserve  the  permanent  interests  of  the  province. 
Henceforth,  however,  Virginia  continued  to  be  a  royal 
province  until  the  period  of  the  American  Revolution. 
^12.  Charles  the  First  adopted  the  notions  and  fol- 
lowed out,  in  its  full  extent,  the  colonial  system  of  his 
father.  He  declared  the  colony  to  be  a  part  of  the 
empire  annexed  to  the  crown,  and  immediately  subor- 
dinate to  its  jurisdiction.  During  the  greater  part  of  his 
reign,  Virginia  knew  no  other  law,  than  the  will  of  the 
sovereign,  or  his  delegated  agents  ;  and  statutes  were 
passed  and  taxes  imposed  without  the  slightest  effort 
to  convene  a  colonial  assembly.  It  was  not  until  the 
murmurs  and  complaints,  which  such  a  course  of  con- 
duct was  calculated  to  produce,  had  betrayed  the  in- 
habitants into  acts  of  open  resistance  to  the  governor, 
and  into  a  firm  demand  of  redress  from  the  crown 
against  his  oppressions,  that  the  king  was  brought  to 
more  considerate  measures.  He  did  not  at  once  yield 
to  their  discontents ;  but  pressed,  as  he  was,  by  severe 
embarrassments  at  home,  he  was  content  to  adopt  a 
policy,  which  would  conciliate  the  colony  and  remove 
some  of  its  just  complaints.  He  accordingly,  soon  af- 
terwards, appointed  Sir  William  Berkeley  governor, 
with  powers  and  instructions,  which  breathed  a  far  more 
benign  spirit.  He  was  authorized  to  proclaim,  that  in 
all  its  concerns,  civil  as  w^ell  as  ecclesiastical,  the  colony 
should  be  governed  according  to  the  laws  of  England. 
He  was  directed  to  issue  writs  for  electing  representa- 
tives of  the  people,  w^ho  with  the  governor  and  council 
should  form  a  general  assembly,  clothed  with  supreme 
legisladve  authority ;  and  to  establish  courts  of  justice, 
whose  proceedings  should  be  guided  by  the  forms  of 
the  parent  country.     The  rights  of  Englishmen  were. 


i2  HISTORY  OF  THE  COLONIES.  [bOOK  I. 

thus,  in  a  great  measure,  secured  to  the  colonists ;  and 
under  the  government  of  this  excellent  magistrate,  with 
some  short  intervals  of  interruption,  the  colony  flourish- 
ed with  a  vigorous  growth  for  almost  forty  years.  The 
revolution  of  1688  found  it,  if  not  in  the  practical  pos- 
session of  liberty,  at  least  with  forms  of  government 
^'ell  calculated  silently  to  cherish  its  spirit. 


CH.  III.]      SETTLEMENT  OF  NEW-ENGLAND.  13 

.       CHAPTER  III. 

ORIGIN  AND  SETTLEMENT  OF  NEW-ENGLAND. 

§  13.  We  may  now  advert  in  a  brief  manner  to  the 
history  of  the  Northern,  or  Plymouth  Company.  That 
company  possessed  fewer  resources  and  less  enterprise 
than  the  Southern ;  and  though  aided  by  men  of  high 
distinction,  its  first  efforts  for  colonization  were  feeble 
and  discouraging.  Capt.  John  Smith,  so  well  known 
in  the  History  of  Virginia  by  his  successful  adventures 
under  their  authority,  lent  a  transient  lustre  to  their  at- 
tempts ;  and  his  warm  descriptions  of  the  beauty  and 
fertility  of  the  country  procured  for  it  from  the  excited 
imagination  of  the  Prince,  after  King  Charles  the  First, 
the  flattering  name  of  JYew- England,  a  name,  which 
effaced  from  it  that  of  Virginia,  and  which  has  since 
become  dear  beyond  expression,  to  the  inhabitants  of 
its  harsh  but  salubrious  climate. 

§  14.  While  the  company  was  yet  languishmg,  an 
event  occurred,  which  gave  a  new  and  unexpected 
aspect  to  its  prospects.  It  is  well  known,  that  the  relig- 
ious dissensions  consequent  upon  the  reformation,  while 
they  led  to  a  more  bold  and  free  spirit  of  discussion, 
failed  at  the  same  time  of  introducing  a  correspondent 
charity  for  differences  of  religious  opinion.  Each  suc- 
cessive sect  entertained  not  the  slightest  doubt  of  its 
own  infallibility  in  doctrine  and  worship,  and  was  eager 
to  obtain  proselytes,  and  denounce  the  errors  of  its 
opponents.  If  it  had  stopped  here,  we  might  have  forgot- 
ten, in  admiration  of  the  sincere  zeal  for  Christian  truth, 
the  desire  of  power,  and  the  pride  of  mind,  which  lurk- 
ed within  the  inner  folds  of  their  devotion.     But  unfor- 


14  HISTORY  OF  THE  COLONIES.  [bOOK  I. 

tunately  the  spirit  of  intolerance  was  abroad  in  all  its 
stern  and  unrelenting  severity.  To  tolerate  errors  was 
to  sacrifice  Christianity  to  mere  temporal  interests. 
Truth,  and  truth  alone,  was  to  be  followed  at  the  hazard 
of  all  consequences;  and  religion  allowed  no  com- 
promises between  conscience  and  worldly  comforts. 
Heresy  was  itself  a  sin  of  a  deadly  nature,  and  to  extir- 
pate it  was  a  primary  duty  of  all,  who  were  believers  in 
sincerity  and  truth.  Persecution,  therefore,  even  when  it 
seemed  most  to  violate  the  feelings  of  humanity  and 
the  rights  of  private  judgment,  never  wanted  apologists 
among  those  of  the  purest  and  most  devout  lives.  It 
was  too  often  received  with  acclamations  by  the  crowd, 
and  found  an  ample  vindication  from  the  learned  and 
the  dogmatists;  from  the  policy  of  the- civil  magistrate,' 
and  the  blind  zeal  of  the  ecclesiastic.  Each  sect,  as  it 
attained  power,  exhibited  the  same  unrelenting  firmness 
in  putting  down  its  adversaries.  The  papist  and  the 
prelate,  the  puritan  and  the  presbyterian,  felt  no  com- 
punctions in  the  destruction  of  dissentients  from  their 
own  faith.  They  uttered,  indeed,  loud  complaints  of 
the  injustice  of  their  enemies,  when  they  were  them- 
selves oppressed;  but  it  was  not  from  any  abhorrence  of 
persecution  itself,  but  of  the  infamous  errors  of  the  per- 
secutors. There  are  not  wanting  on  the  records  of  the 
history  of  these  times  abundant  proofs,  how  easily  sects, 
which  had  borne  every  human  calamity  with  unshrink- 
ing fortitude  for  conscience'  sake,  could  turn  upon 
their  inoffensive,  but,  in  their  judgment,  erring  neigh- 
bours, with  a  like  infliction  of  suffering.  Even  adver- 
sity sometimes  fails  of  producing  its  usual  salutary 
effects  of  moderation  and  compassion,  when  a  blind  but 
honest  zeal  has  usurped  dominion  over  the  mind.  If 
such  a  picture  of  human  infirmity  may  justly  add  to  our 


CH.  III.]      SETTLEMENT  OF  NEW-ENGLAND.  15 

humility,  it  may  also  serve  to  admonish  us  of  the  Chris- 
tian duty  of  forbearance.  And  he,  who  can  look  with  an 
eye  of  exclusive  censure  on  such  scenes,  must  have  for- 
gotten, how  many  bright  examples  they  have  afforded 
of  the  liveliest  virtue,  the  most  persuasive  fidelity,  and 
the  most  exalted  piety. 

^15.  Among  others,  who  suffered  persecutions  from 
the  haughty  zeal  of  Elizabeth,  was  a  small  sect,  called, 
from  the  name  of  their  leader,  Brownists,  to  whom  we 
owe  the  foundation  of  the  now  wide  spread  sect  of  Con- 
gregationalists  or  Independents.  After  sufferings  of  an 
aggravated  nature,  they  were  compelled  to  take  refuge  in 
Holland  under  the  care  of  their  pastor,  Mr.  John  Rob- 
inson, a  man  distinguished  for  his  piety,  his  benevo- 
lence, and  his  intrepid  spirit.  After  remaining  there 
some  years,  they  concluded  to  emigrate  to  America  in 
the  hope,  that  they  might  thus  perpetuate  their  religious 
discipline,  and  preserve  the  purity  of  an  apostolical 
church.  In  conjunction  with  other  friends  in  England 
they  embarked  on  the  voyage  with  a  design  of  settle- 
ment on  Hudson's  river  in  New-York.  But  against 
their  intention  they  were  compelled  to  land  on  the 
shores  of  Gape  Cod  in  the  depth  of  winter,  and  the 
place  of  their  landing  was  called  Plymouth,  which  has 
since  become  so  celebrated  as  the  first  permanent  set- 
dement  in  New-England.  Not  having  contemplated 
any  plantation  at  this  place,  they  had  not  taken  the  pre- 
caution to  obtain  any  charter  from  the  Plymouth  Com- 
pany. 

^16.  On  the  11th  of  November,  1620,  these  hum- 
ble but  fearless  adventurers,  before  their  landing,  drew 
up  and  signed  an  original  compact,  in  which,  after 
acknowledging  themselves  subjects  of  the  crown  of 
England,  they  proceed  to  declare:  "  Having  undertaken. 


16  HISTORY  OF  THE  COLONIES.  [bOOK  J. 

for  the  glory  of  God  and  the  advancement  of  the  Chris- 
tian faith  and  the  honor  of  our  king  and  country,  a 
voyage  to  plant  the  first  colony  in  the  northern  parts  of 
Virginia,  we  do  by  these  presents  solemnly  and  mutual- 
ly, in  the  presence  of  God  and  of  one  another,  covenant 
and  combine  ourselves  together  into  a  civil  body  politic, 
for  our  better  ordering  and  preservation  and  furtherance 
of  the  ends  aforesaid.     And  by  virtue  hereof  do  enact, 
constitute,  and  frame  such  just  and  equal  laws,  ordinan- 
ces, acts,  constitutions,  and  officers  from  time  to  time,  as 
shall  be  thought  most  meet  and  convenient  for  the  gen- 
eral good  of  the  colony ;   unto  which  we  promise  all 
due  submission  and  obedience."     This  is  the  whole 
of  the  compact,  and  it  was  signed  by  forty-one  per- 
sons.    It  is  in  its  very  essence  a  pure  democracy  ; 
and  in  pursuance  of  it  the  colonists   proceeded  soon 
afterwards   to  organize  the  colonial  government,  un- 
der the  name  of  the   Colony  of  New  Plymouth,  to 
appoint  a  governor  and  other  officers,  and  to  enact 
laws.     The   governor  was   chosen   annually  by   the 
freemen,  and  had  at  first  one  assistant  to  aid  him  in 
the  discharge  of  his  trust.     Four  others  were  soon 
afterwards   added,  and  finally   the  number  was   in- 
creased  to  seven.      The  supreme  legislative   power 
resided  in,  and  was  exercised  by  the  whole  body  of 
the  male  inhabitants,  every  freeman,  who  was  a  mem- 
ber of  the  church,  being  admitted  to  vote  in  all  public 
affairs.     The  number  of  settlements  having  increased, 
and  being  at  a  considerable  distance  from  each  other, 
a  house  of  representatives  was  established  in  1639; 
the  members  of  which,  as  well  as  all  other  officers,  were 
annually  chosen.     They  adopted  the  common  law  of 
England,  as  the  general  basis  of  their  jurisprudence,  va- 
rying it  however  from  time  to  time  by  municipal  regu- 


CH.  ni.]       SETTLEMENT  OF  NEW-ENGLAND.  17 

lations  better  adapted  to  their  situation,  or  conforming 
more  exactly  to  their  stern  notions  of  the  absolute  au- 
thority and  universal  obligation  of  the  Mosaic  Institu- 
tions. 

^  17.  The  Plymouth  Colonists  acted,  at  first,  alto- 
gether under  the  voluntary  compact  and  association 
already  mentioned.  But  they  daily  felt  embarrassments 
from  the  want  of  some  general  authority,  derived  direct- 
ly or  indirectly  from  the  crown,  which  should  recognise 
their  settlement  and  confirm  their  legislation.  After 
several  ineffectual  attempts  made  for  this  purpose,  they 
at  length  succeeded  in  obtaining,  in  January,  1629,  a 
patent  from  the  council  established  at  Plymouth,  in 
England,  under  the  charter  of  King  James  of  1620. 

^18.  This  patent  or  charter  seems  never  to  have  been 
confirmed  by  the  crown  ;  and  the  colonists  were  nev- 
er, by  any  act  of  the  crown,  created  a  body  politic  and 
corporate  with  any  legislative  powers.  They,  there- 
fore, remained  in  legal  contemplation  a  mere  voluntary 
association,  exercising  the  highest  powers  and  preroga- 
tives of  sovereignty,  and  yielding  obedience  to  the  laws 
and  magistrates  chosen  by  themselves. 

^19.  The  charter  of  1629  furnished  them,  how- 
ever, with  the  colour  of  delegated  sovereignty,  of  which 
they  did  not  fail  to  avail  themselves.  They  assumed 
under  it  the  exercise  of  the  most  plenary  executive, 
legislative,  and  judicial  powers  with  but  a  momentary 
scruple,  as  to  their  right  to  inflict  capital  punishments. 
They  were  not  disturbed  in  the  free  exercise  of  these 
powers,  either  through  the  ignorance  or  the  connivance 
of  the  crown,  until  after  the  restoration  of  Charles  the 
Second.  Their  authority  under  their  charter  was  then 
questioned ;  and  several  unsuccessful  attempts  were 
made  to  procure  a  confirmation  from  the  crown.     They 

Abr.  3 


18  HISTORY  OF  THE  COLONIES.  [bOOK  I. 

continued  to  cling  to  it,  until,  in  the  general  shipwreck 
of  charters  in  1684,  theirs  was  overturned.  An  arbi- 
trary government  was  then  established  over  them  in 
common  with  the  other  New-England  colonies ;  and 
they  were  finally  incorporated  into  a  province  with 
Massachusetts  under  the  charter  granted  to  the  latter 
by  William  and  Mary  in  1691. 


CH.  IV.]  MASSACHtJSETTS.  19 

CHAPTER  IV. 

MASSACHUSETTS. 

^  20.  About  the  period  when  the  Plymouth  colo* 
nists  completed  their  voyage,  James  the  First,  with  a 
view  to  promote  more  effectually  the  interests  of  the 
second  or  northern  company,  granted  to  the  Duke  of 
Lenox  and  others  of  the  company  a  new  charter,  by 
which  its  territories  were  extended  in  breadth  from  the 
40th  to  the  48th  degree  of  north  latitude  ;  and  in  length 
by  all  the  breadth  aforesaid  throughout  the  main  land 
from  sea  to  sea,  excluding  however  all  possession  of 
any  other  Christain  prince,  and  all  lands  within  the 
bounds  of  the  southern  colony.  To  the  territory  thus 
bounded  he  affixed  the  name  of  New-England,  and  to 
the  corporation  itself  so  created,  the  name  of  "The 
Council  established  at  Plymouth  in  the  county  of 
Devon,  for  the  planting,  ruling,  ordering,  and  govern- 
ing of  New-England  in  America." 

§  21.  Some  of  the  powers  granted  by  this  charter 
were  alarming  to  many  persons,  and  especially  those, 
which  granted  a  monopoly  of  trade.  The  efforts  to 
setde  a  colony  within  the  territory  were  again  renewed, 
and  again  were  unsuccessful.  The  spirit  of  religion, 
however,  soon  effected,  what  the  spirit  of  commerce  had 
failed  to  accomplish.  The  Puritans,  persecuted  at 
home,  and  groaning  under  the  weight  of  spiritual  bon- 
dage, cast  a  longing  eye  towards  America,  as  an  ulti- 
mate retreat  for  themselves  and  their  children.  They 
were  encouraged  by  the  information,  that  the  colonists 
at  Plymouth  were  allowed  to  worship  their  Creator 
according  to  the  dictates  of  their  consciences,  without 


20  HISTORY   OF  THE  COLONIES.  [bOOK  I, 

molestation.  They  opened  a  negotiation,  through  the 
instrumentality  of  a  Mr.  White,  a  distinguished  non- 
conforming minister,  with  the  council  established  at 
Plymouth  ;  and  in  March,  1627,  procured  from  them  a 
grant  to  Sir  Henry  Rosewell  and  others  of  all  that  part 
of  New-England  lying  three  miles  south  of  Charles 
river  and  three  miles  north  of  Merrimack  river,  and  ex- 
tending from  the  Atlantic  to  the  South  Sea: 

§  22.  Other  persons  were    soon  induced  to  unite 
with  them,  if  a  charter  could  be  procured  from  the 
crown,  which  should  secure  to  the  adventurers  the  usual 
powers  of  government.     Application  was  made  for  this 
purpose  to  King  Charles,  who,  accordingly,  in  March 
1628,  granted  to  the  grantees  and  their  associates  the 
most  ample  powers  of  government.     The  charter  con- 
firmed to  them  the  territory  already  granted  by  the  coun- 
cil established  at  Plymouth,  to  be  holden  of  the  crown, 
as  of  the  royal  manor  of  East  Greenwich,  "in  free  and 
common  soccage,  and  not  in  capite,  nor  by  knight's  ser- 
vice," yielding  to  the  crown  one  fifth  part  of  all  ore  of 
gold  and  silver,  &c,  with  the  exception,  however,  of  any 
part  of  the  territory  actually  possessed  or  inhabited  by 
any  other  Christian  prince  or  state,  or  of  any  part  of  it 
within  the  bounds  of  the  southern  colony  [of  Virginia] 
granted  by  King  James.      It  also  created  the  asso- 
ciates a  body  politic  by  the  name  of  "  The  Governor  and 
Company  of  the  Massachusetts  Bay  in  New -England," 
with  the  usual  powers  of  corporations.     It  provided, 
that  the  government  should  be  administered  by  a  gov- 
ernor, a  deputy  governor,  and  eighteen  assistants,  from 
time  to  time  elected  out  of  the  freemen  of  the  company, 
which   officers  should   have    the  care  of  the  general 
business  and  affairs  of  the  lands  and  plantations,  and  the 
government  of  the  people  there ;  and  it  appointed  the 


CH.  IV.]  MASSACHUSETTS.  21 

first  governor,  deputy  governor,  and  assistants  by  name. 
It  further  provided,  that  a  court  or  quorum  for  the 
transaction  of  business  should  consist  of  the  governor,  or 
the  deputy  governor,  and  seven  or  more  assistants,  which 
should  assemble  as  often  as  once  a  month  for  that  pur- 
pose, and  also,  that  four  great  general  assemblies  of  the 
company  should  be  held  in  every  year.  In  these  great 
and  general  assemblies,  (which  were  composed  of  the 
governor,  deputy,  assistants,  and  freemen  present,)  free- 
men were  to  be  admitted  free  of  the  company,  officers 
w^ere  to  be  elected,  and  laws  and  ordinances  for  the  good 
and  w^elfare  of  the  colony  made  ;  "  so  as  such  laws  and 
ordinances  be  not  contrary  or  repugnant  to  the  laws 
and  statutes  of  this  our  realm  of  England."  At  one  of 
these  great  and  general  assemblies  held  in  Easter  Term, 
the  governor,  deputy,  and  assistants,  and  other  officers 
were  to  be  annually  chosen  by  the  company  present. 
The  company  were  further  authorized  to  transport  any 
subjects  or  strangers  willing  to  become  subjects  of  the 
crown  to  the  colony,  and  to  carry  on  trade  to  and  from 
it,  without  custom  or  subsidy  for  seven  years,  and 
were  to  be  free  of  all  taxation  of  imports  or  exports  to 
and  from  the  English  dominion  for  the  space  of  tw  enty- 
one  years,  with  the  exception  of  a  five  per  cent.  duty. 
The  charter  further  provided,  that  all  subjects  of  the 
crown,  who  should  become  inhabitants,  and  their  chil- 
dren born  there,  or  on  the  seas  going  or  returning, 
should  enjoy  all  liberties  and  immunities  of  free  and  nat- 
ural subjects,  as  if  they  and  every  of  them  w^ere  born 
within  the  realm  of  England.  Full  legislative  authority 
was  also  given,  subject  to  the  restriction  of  not  being 
contrary  to  the  laws  of  England,  as  also  for  the  imposi- 
tion of  fines  and  mulcts  "  according  to  the  course  of 
other  corporations  in  England."     Many  other  provis- 


22  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

ions  were  added,  similar  in  substance  to  those  found  in 
the  antecedent  colonial  charters  of  the  crown. 

§  23.  Such  were  the  original  limits  of  the  colony  of 
Massachusetts  Bay,  and  such  were  the  powers  and  priv- 
ileges conferred  on  it.  It  is  observable,  that  the  whole 
structure  of  the  charter  presupposes  the  residence  of 
the  company  in  England,  and  the  transaction  of  all  its 
business  there.  The  experience  of  the  past  had  not 
sufficiently  instructed  the  adventurers,  that  settlements 
in  America  could  not  be  well  governed  by  corporations 
resident  abroad  ;  or  if  any  of  them  had  arrived  at  such 
a  conclusion,  there  were  many  reasons  for  presuming, 
that  the  crown  would  be  jealous  of  granting  powers  of 
so  large  a  nature,  which  were  to  be  exercised  at  such 
a  distance,  as  would  render  any  control  or  responsibility 
over  them  wholly  visionary. 

^  24.  But  a  bolder  step  was  soon  afterwards  taken 
by  the  company  itself.  It  was  ascertained,  that  Htde 
success  would  attend  the  plantation,  so  long  as  its  af- 
fairs were  under  the  control  of  a  distant  government, 
knowing  little  of  its  wants  and  insensible  to  its  difficul- 
ties. Many  persons,  indeed,  possessed  of  fortune  and 
character,  warmed  with  religious  zeal,  or  suffering  un- 
der religious  intolerance,  were  ready  to  embark  in  the 
enterprise,  if  the  corporation  should  be  removed,  so  that 
the  powers  of  government  might  be  exercised  by  the 
actual  setders.  The  company  had  already  become 
alarmed  at  the  extent  of  their  own  expenditures,  and 
there  were  but  faint  hopes  of  any  speedy  reimburse- 
ment. They  entertained  some  doubts  of  the  legality  of  the 
course  of  transferring  the  charter.  But  at  length  it  was 
determined  in  August,  1629,  "by  the  general  consent 
of  the  company,  that  the  government  and  patent  should 
be  settled  in  New-England."     This  resolution  infused 


CH.  IV.]  MASSACHUSETTS.  23 

new  life  into  the  association  ;  and  the  next  election  ol 
officers  was  made  from  among  those  proprietors,  who 
had  signified  an  intention  to  remove  to  America.  The 
government  and  charter  were  accordingly  removed; 
and  henceforth  the  whole  management  of  all  the  affairs 
of  the  colony  was  confided  to  persons  and  magistrates 
resident  within  its  own  bosom.  The  fate  of  the  colony 
was  thus  decided;  and  it  grew  with  a  rapidity  and 
strength,  that  soon  gave  it  a  great  ascendancy  among  the 
New-England  settlements,  and  awakened  the  jealousy, 
distrust,  and  vigilance  of  the  parent  country. 

^  25.  The  government  of  the  colony  immediately  af- 
ter the  removal  of  the  charter  was  changed  in  many  im- 
portant features ;  but  its  fundamental  grants  of  territory, 
powers,  and  privileges  were  eagerly  maintained  in  their 
original  validity.  It  is  true,  as  Dr.  Robertson  has  ob- 
served, that  as  soon  as  the  Massachusetts  emigrants 
had  landed  on  these  shores,  they  considered  themselves 
for  many  purposes  as  a  voluntary  association,  possess- 
ing the  natural  rights  of  men  to  adopt  that  mode  of  gov- 
ernment, which  was  most  agreeable  to  themselves,  and 
to  enact  such  laws,  as  were  conducive  to  their  own  wel- 
fare. They  did  not,  indeed,  surrender  up  their  charter, 
or  cease  to  recognise  its  obligatory  force.  But  they 
extended  their  acts  far  beyond  its  expression  of  pow- 
ers ;  and  while  they  boldly  claimed  protection  from  it 
against  the  royal  demands  and  prerogatives,  they  nev- 
ertheless did  not  feel,  that  it  furnished  any  limit  upon 
the  freest  exercise  of  legislative,  executive,  or  judicial 
functions.  They  did  not  view  it,  as  creating  an  English 
corporation  under  the  narrow  construction  of  the  com- 
mon law;  but  as  affording  the  means  of  founding  a  broad 
political  government,  subject  to  the  crown  of  England, 
but  yet  enjoying  many  exclusive  privileges. 


24  HISTORY    OF    THE    COLONIES.  [bOOK    I. 

§  26,  It  may  be  well  to  state  in  this  connexion,  that 
the  council  established  at  Plymouth  in  a  very  short  pe- 
riod after  the  grant  of  the  Massachusetts  charter  (in 
1 635)  finally  surrendered  their  own  patent  back  to  the 
crown.  They  had  made  other  grants  of  territory,  which 
we  shall  hereafter  have  occasion  to  notice,  which  had 
greatly  diminished  the  value,  as  well  as  importance  of 
their  charter.  But  the  immediate  cause  of  the  surren- 
der was  the  odious  extent  of  the  monopolies  granted 
to  them,  which  roused  the  attention  of  Parhament,  and 
of  the  nation  at  large,  and  compelled  them  to  resign, 
what  they  could  scarcely  maintain  against  the  strong 
current  of  public  opinion.  The  surrender,  so  far  from 
working  any  evil,  rather  infused  new  life  into  the  colo- 
nies, which  sprung  from  it,  by  freeing  them  from  all 
restraint  and  supervision  by  a  superior  power,  to  which 
they  might  perhaps  have  been  held  accountable.  Im- 
mediately after  this  surrender  legal  proceedings  were 
instituted  against  the  proprietors  of  the  Massachusetts 
charter.  Those  who  appeared  were  deprived  of  their 
franchises.  But  fortunately  the  measure  was  not  carried 
into  complete  execution  against  the  absent  proprietors 
acting  under  the  charter  in  America. 

^  27.  After  the  fall  of  the  first  colonial  charter  in 
1684,  Massachusetts  remained  for  some  years  in  a  very 
disturbed  state  under  the  arbitrary  power  of  the  crown. 
At  length  a  new  chatter  was  in  1691  granted  to  the 
colony  by  William  and  Mary;  and  it  henceforth  became 
known  as  a  province,  and  continued  to  act  under  this  last 
charter  until  after  the  Revolution.  The  charter  compre- 
hended within  its  territorial  limits  all  the  old  colony  of 
the  Massachusetts  Bay,  the  colony  of  New-Plymouth, 
the  Province  of  Maine,  the  territory  called  Acadia, 
or  Nova  Scotia,  and  all  the  lands  lying  between  Nova 


CH.    IV.]  MASSACHUSETTS.  25 

Scotia  and  Maine;  and  incorporated  the  whole  into  one 
Province  by  the  name  of  the  Province  of  the  Massachu- 
setts Bay  in  New-England,  to  be  holden  as  of  the  royal 
manor  of  East  Greenwich,  in  the  county  of  Kent.  It 
confirmed  all  prior  grants  made  of  lands  to  all  persons, 
corporations,  colleges,  towns,  villages,  and  schools.  It 
reserved  to  the  crown  the  appointment  of  the  Governor, 
and  Lieut.  Governor,  and  Secretary  of  the  province, 
and  all  the  officers  of  the  Court  of  Admiralty.  It  provid- 
ed for  the  appointment  annually  of  twenty-eight  Coun- 
sellors, who  were  to  be  chosen  by  the  General  Court, 
and  nominated  the  first  board.  The  Governor  and 
Counsellors  were  to  hold  a  council  for  the  ordering  and 
directing  of  the  affairs  of  the  Province.  The  Governor 
was  invested  with  the  right  of  nominating  and  with  the 
advic^  of  the  council  of  appointing  all  military  officers, 
and  all  sheriffs,  provosts,  marshals,  and  justices  of  the 
peace,  and  other  officers  of  courts  of  justice.  He  had 
also  the  power  of  calling  the  General  Court,  and  of  ad- 
journing, proroguing,  and  dissolving  it.  He  had  also  a 
negative  upon  all  laws  passed  by  the  General  Court. 
The  General  Court  was  to  assemble  annually  on  the 
last  Wednesday  of  May,  and  was  to  consist  of  the  Gov- 
ernor and  Council  for  the  time  being,  and  of  such  rep- 
resentatives being  freeholders,  as  should  be  annually 
elected  by  the  freeholders  in  each  town,  who  possessed 
a  freehold  of  forty  shillings  annual  value,  or  other  estate 
to  the  value  of  forty  pounds.  Each  town  was  entided 
to  two  representatives ;  but  the  General  Court  was 
from  time  to  time  to,^ decide  on  the  number,  w^hich  each 
town  should  send.  The  General  Court  was  invested 
with  full  authority  to  erect  courts,  to  levy  taxes,  and 
make  all  wholesome  laws  and  ordinances,  "  so  ^s 
the  same  be  not  repugnant  or  contrary  to  the  laws  of 

Abr.  4  '' 


26  HISTORY    OF    THE    COLONIES.  [BOOK    I. 

England;"  and  to  settle  annually  all  civil  officers, 
whose  appointment  was  not  otherwise  provided  for. 
All  laws,  however,  were  to  be  sent  to  England  for 
approbation  or  disallowance  ;  and  if  disallowed,  and  so 
signified  under  the  sign  manual  and  signet,  within  three 
years,  the  same  thenceforth  to  cease  and  become  void  ; 
otherwise  to  continue  in  force  according  to  the  terms 
of  their  original  enactment.  The  General  Court  was 
also  invested  with  authority  to  grant  any  lands  in  the 
colonies  of  Massachusetts,  New  Plymouth,  and  Prov- 
ince of  Maine,  with  certain  exceptions.  The  Govern- 
or and  Council  were  invested  with  full  jurisdiction  as 
to  the  probate  of  wills  and  granting  administrations.  The 
Governor  was  also  made  commander-in-chief  of  the 
miHtia,  with  the  usual  martial  powers ;  but  was  not  to 
exercise  martial  law  without  the  advice  of  the  Council. 
In  case  of  his  death,  removal,  or  absence,  his  authority 
was  to  devolve  on  the  Lieut.  Governor,  or,  if  his  office 
was  vacant,  then  on  the  Council.  With  a  view  also  to 
advance  the  growth  of  the  Province  by  encouraging 
new  settlements,  it  was  expressly  provided,  that  there 
should  be  "a  liberty  of  conscience  allowed  in  the  wor- 
ship of  God  to  all  Christians,  except  Papists ;"  and 
that  all  subjects  inhabiting  in  the  Province  and  their 
children  born  there,^or  on  the  seas  going  or  returning, 
should  have  all  the  liberties  and  immunities  of  free  and 
natural  subjects,  as  if  they  were  born  within  the  realm 
of  England.  And  in  all  cases  an  appeal  was  allowed 
from  the  judgments  of  any  courts  of  the  Province  to  the 
King  in  the  Privy  Council  in  England,  where  the  mat- 
ter in  difference  exceeded  three  hundred  pounds  ster- 
ling. And  finally  there  was  a  reservation  of  the  whole 
admiralty  jurisdiction  to  the  crown ;  and  of  a  right  to 
all  subjects  to   fish  on  the  coasts.     Considering  the 


CH.    IV.]  MASSACHUSETTS.  27 

spirit  of  the  times,  it  must  be  acknowledged,  that,  on  the 
whole,  this  charter  contains  a  liberal  grant  of  authority 
to  the  Province ;  and  a  reasonable  reservation  of  the 
royal  prerogative.  It  was  hailed  with  sincere  satisfac- 
tion by  the  colony  after  the  dangers,  which  had  for  so 
long  a  time  menaced  its  liberties  and  its  peace. 


28  HISTORY  OF   THE  COLONIES.  [bOOK  I. 


CHAPTER  V. 

NEW-HAMPSHIRE. 

^  28.  Having  gone  into  a  full  consideration  of  the 
origin  and  political  organization  of  the  primitive  colonies 
in  the  South  and  North,  it  remains  only  to  take  a  rapid 
view  of  those,  which  were  subsequently  established  in 
both  regions.  An  historical  order  will  probably;  be 
found  as  convenient  for  this  purpose,  as  any,  which 
could  be  devised. 

^  29.  In  November,  1629,  Capt.  John  Mas  on.  ob  taint- 
ed a  grant  from  the  council  of  Plymouth  of  all  th^t  part 
of  the  main  land  in  New-England  "lying  upon  the  sea- 
coast,  beginning  from  the  middle  part  of  Merrimack  riv- 
er, and  from  thence  to  proceed  northwards  alcftig  the 
sea-coast  to  Piscataqua  river,  and  so  forwards  yp  with- 
in the  said  river  and  to  the  furthest  head  thereof;  and 
from  thence  northwestwards  until  three  score  miles  be 
finished  from  the  first  entrance  of  Piscataqua  riyer ;  and 
also  from  Merrimack  through  the  said  river  ai^jd  to  the 
furthest  head  thereof,  and  so  forwards  up  into^ne  lands 
westwards,  until  three  score  miles  be  finished  ;,»|feind  from 
thence  to  cross  over  land  to  the  three  score  .iniles  and 
accounted  from  Piscataqua  river,  together '  with  all 
islands  and  islets  within  five  leagues  distance  of  the 
premises."  This  territory  was  afterwards  called  New- 
Hampshire.  The  land  so  granted  was  expressly  sub- 
jected to  the  conditions  and  limitations  in  the  original 
patent ;  and  there  was  a  covenant  on  the  part  of  Mason 
that  he  would  establish  such  government  therein,  and 
continue  the  same,  "  as  shall  be  agreeable,  as  near  as 
may  be,  to  the  laws  and  customs  of  the  realm  of  Eng- 


CH.  v.]  NEW-HAMPSHIRE.  29 

land."  A  further  grant  was  made  to  Mason  by  the 
council  of  Plymouth  about  the  time  of  the  surrender 
of  their  charter,  (22  April,  1635,)  "beginning  from 
the  middle  part  of  Naumkeag  rivqr  [Salem],  and  from 
thence  to  proceed  eastwards  along  the  sea-coast  to 
Cape  Ann  and  round  about  the  same  to  Piscataqua 
harbor;  and  then  covering  much  of  the  land  in  the 
prior  grant,  and  giving  to  the  whole  the  name  of  New- 
Hampshire."  This  grant  included  a  power  of  ju- 
dicature in  all  cases,  civil  and  criminal,  "  to  be  exercis- 
ed and  executed  according  to  the  laws  of  England  as 
near  as  may  be,"  reserving  an  appeal  to  the  council. 
No  patent  of  confirmation  of  this  grant  appears  to  have 
been  made  by  the  crown  after  the  surrender  of  the  Ply- 
mouth patent. 

§  30.  Various  detached  setdements  were  made 
within  this  territory ;  and  so  ill  defined  were  the  bounda- 
ries, that  a  controversy  soon  arose  between  Massachu- 
setts and  Mason  in  respect  to  the  right  of  sovereignty 
over  it.  In  the  exposition  of  its  own  charter  Massa- 
chusetts contended,  that  its  limits  included  the  whole 
territory  of  New-Hanjpshire ;  and  being  at  that  time 
comparatively  strong  and  active,  she  succeeded  in 
establishing  her  jurisdiction  over  it,  and  maintained  it 
with  unabated  vigilance  for  forty  years.  The  contro- 
versy was  finally  brought  before  the  king  in  council ; 
and  in  1 679  it  was  solemnly  adjudged  against  the  claim 
of  Massachusetts.  And  it  being  admitted,  that  Mason, 
under  his  grant,  had  no  right  to  exercise  any  powers  of 
government,  a  commission  was,  in  the  same  year,  issued 
by  the  crown  for  the  government  of  New-Hampshire. 
By  the  form  of  government,  described  in  this  commis- 
sion, the  whole  executive  power  was  vested  in  a  presi- 
dent and  council  appointed  by  the  crown,  to  whom  also 


30  HISTORY  OF  THE  COLONIES.  [bOOK  I. 

was  confided  the  judiciary  power  with  an  appeal  to 
England.  In  the  administration  of  justice  it  was  direct- 
ed, that  "the  form  of  proceedings  in  such  cases,  and 
the  judgment  thereon  to  be  given,  be  as  consonant  and 
agreeable  to  the  laws  and  statutes  of  this  our  realm  of 
England,  as  the  present  state  and  condition  of  our  sub- 
jects inhabiting  within  the  hmits  aforesaid,  and  the  cir- 
cumstances of  the  place  will  admit."  The  legislative 
power  was  entrusted  to  the  president,  council,  and  bur- 
gesses, or  representatives  •  chosen  by  the  towns  ;  and 
they  were  authorized  to  levy  taxes  and  to  make  laws 
for  the  interest  of  the  province;  which  laws  being 
approved  by  the  president  and  council  were  to  stand 
and  be  in  force,  until  the  pleasure  of  the  king  should 
be  known,  whether  the  same  laws  and  ordinances 
should  receive  any  change  or  confirmation,  or  be  to- 
tally disallowed  and  discharged.  And  the  president 
and  council  were  required  to  transmit  and  send  over 
the  same  by  the  first  ship,  that  should  depart  thence  for 
England  after  their  making.  Liberty  of  conscience  was 
allowed  to  all  protestants,  those  of  the  Church  of  Eng- 
land to  be  particularly  encouraged.  And  a  pledge  was 
given  in  the  commission  to  continue  the  privilege  of  an 
assembly  in  the  same  manner  and  form,  unless  by 
inconvenience  arising  therefrom  the  crown  should  see 
cause  to  alter  the  same. 


CH.  VI.]  MAINE.  31 

CHAPTER  VL 


MAINE. 


§  31.  In  August,  1622,  the  council  of  Plymouth 
(which  seems  to  have  been  extremely  profuse  and 
inconsiderate  in  its  grants)  granted  to  Sir  Ferdinando 
Gorges  and  Capt.  John  Mason  all  the  lands  lying  be- 
tween the  rivers  Merrimack  and  Sagadahock,  extend- 
ing back  to  the  great  lakes  and  rivers  of  Canada ;  which 
was  called  Laconia.  In  April,  1639,  Sir  Ferdinando 
obtained  from  the  crown  a  confirmatory  grant  of  all  the 
land  from  Piscataqua  to  Sagadahock  and  the  Kenne- 
beck  river,  and  from  the  coast  into  the  northern  interior 
one  hundred  and  twenty  miles;  and  it  was  styled  "The 
Province  of  Maine."  Of  this  province  he  was  made 
Lord  Palatine,  with  all  the  powers,  jurisdiction,  and 
royalties  belonging  to  the  bishop  of  the  county  Palatine 
of  Durham ;  and  the  lands  were  to  be  holden,  as  of  the 
manor  of  East  Greenwich.  The  charter  contains  a 
reservation  of  faith  and  allegiance  to  the  crown,  as  hav- 
ing the  supreme  dominion ;  and  the  will  and  pleasure  of 
the  crown  is  signified,  that  the  religion  of  the  Church  of 
England  be  professed,  and  its  ecclesiastical  government 
established  in  the  province.  It  also  authorizes  the 
Palatine,  with  the  assent  of  the  greater  part  of  the  free- 
holders of  the  province,  to  make  laws  not  repugnant  or 
contrary,  but  as  near  as  conveniently  may  be  to  the  laws 
of  England,  for  the  public  good  of  the  province;  and  to 
erect  courts  of  judicature  for  the  determination  of  all 
civil  and  criminal  causes,  with  an  appeal  to  the  Palatine. 
But  all  the  powers  of  government,  so  granted,  were  to 


32  HISTORY  OF  THE  COLONIES.  [bOOK  I. 

be  subordinate  to  the  "power  and  regement,''^  of  the 
lords  commissioners  for  foreign  plantations  for  the  time 
being.  The  Palatine  also  had  authority  to  make  ordi- 
nances for  the  government  of  the  province,  under  certain 
restrictions;  and  a  grant  of  full  admiralty  powers,  sub- 
ject to  that  of  the  Lord  High  Admiral  of  England.  And 
the  inhabitants,  being  subjects  of  the  crown,  were  to 
enjoy  all  the  rights  and  privileges  of  natural  born  sub- 
jects in  England. 

^  32.  Under  these  ample  provisions  Gorges  soon 
estabHshed  a  civil  government  in  the  province,  and 
made  ordinances.  The  government,  such  as  it  was, 
was  solely  confided  to  the  executive,  without  any  pow- 
ers of  legislation.  The  province  languished  in  imbecil- 
ity under  his  care ;  and  began  to  acquire  vigour  only 
when  he  ceased  to  act  as  proprietary  and  lawgiver. 
Massalchusetts  soon  afterwards  set  up  an  exclusive  right 
and  jurisdiction  over  the  territory,  as  within  its  char- 
tered limits ;  and  was  able  to  enforce  obedience  and 
submission  to  its  power.  It  continued  under  the  juris- 
diction of  Massachusetts  until  1665,  when  the  com- 
missioners of  the  crown  separated  it  for  a  short  period ; 
but  the  authority  of  Massachusetts  was  soon  afterwards 
re-established.  The  controversy  between  Massachu- 
setts and  the  Palatine,  as  to  jurisdiction  over  the  prov- 
ince, was  brought  before  the  privy  council  at  the  same 
time  with  that  of  Mason  respecting  New-Hampshire, 
and  the  claim  of  Massachusetts  was  adjudged  void. 
Before  a  final  adjudication  was  had,  Massachusetts  had 
the  prudence  and  sagacity,  in  1677,  to  purchase  the 
th\e  of  Gorges  for  a  trifling  sum ;  and  thus  to  the  great 
disappointment  of  the  crown,  (then  in  treaty  for  the 
same  object,)  succeeded  to  it,  and  held  it,  and  govern- 


CH.  VI.]  MAINE.  33 

ed  it  as  a  provincial  dependency,  until  the  fall  of  its  own 
charter;  and  it  afterwards,  as  we  have  seen,  was  incor- 
porated with  Massachusetts  in  the  provincial  charter  of 
1691. 


Abr, 


34  HISTORY  OF  THE  COLONIES.  [bOOK  I, 

CHAPTER  VII. 

CONNECTICUT. 

§  33.  Connecticut  was  originally  settled  under 
the  protection  of  Massachusetts;  but  the  inhabitants  in 
a  few  years  afterwards  (1638)  felt  at  liberty  (after  the 
example  of  Massachusetts)  to  frame  a  constitution  of 
government  and  laws  for  themselves.  In  1630  the 
Earl  of  Warwick  obtained  from  the  council  of  Plymouth 
a  patent  of  the  land  upon  a  straight  line  near  the  sea- 
shore towards  the  southwest,  west  and  by  south,  or 
west  from  Narraganset  river  forty  leagues,  as  the  coast 
lies  towards  Virginia,  and  all  within  that  breadth  to  the 
South  sea.  In  March,  1 63 1 ,  the  Earl  of  Warwick  con- 
veyed the  same  to  Lord  Say  and  Scale  and  others. 
In  April,  1 635,  the  same  council  granted  the  same  ter- 
ritory to  the  Marquis  of  Hamilton.  Possession  under 
the  tide  of  Lord  Say  and  Scale  and  others  was  taken 
of  the  mouth  of  the  Connecticut  in  1635.  The  settlers 
there  w^ere  not,  however,  disturbed ;  and  finally,  in 
1644,  they  extinguished  the  title  of  the  proprietaries,  or 
Lords,  and  continued  to  act  under  the  constitution  of 
government,  which  they  had  framed  in  1638. 

§  34.  The  colony  of  New-Haven  had  a  sep.arate  ori- 
gin, and  was  settled  by  emigrants  immediately  from 
England,  without  any  tide  derived  from  the  patentees. 
They  began  their  settlement  in  1638,  purchasing  their 
lands  of  the  natives;  and  entered  into  a  solemn  compact 
of  government. 

^  35.  Soon  after  the  restoration  of  Charles  the  Sec- 
ond to  the  throne,  the  colony  of  Connecticut,  aware  of 
the  doubtful  nature  of  its  title  to  the  exercise  of  sove- 


CH.  VII.]  CONNECTICUT.  35 

reignty,  solicited  and  in  April,  1662,  obtained  from 
that  monarch  a  charter  of  government  and  territory. 
The  charter  included  within  its  Ihnits  the  whole  colony 
of  JNTew -Haven;  and  as  this  was  done  without  the  con- 
sent of  the  latter,  resistance  was  made  to  the  incorpo- 
ration, until  1665,  when  both  were  indissolubly  united, 
and  have  ever  since  remained  under  one  general  gov- 
ernment. 

§  36.  The  charter  of  Connecticut,  w^hich  has  been 
objected   to   by  Chalmers,   as  estabhshing   "a   mere 
democracy,  or  rule  of  the  people,"  contained,  indeed,  a 
very  ample  grant  of  privileges.     It  incorporated  the 
inhabitants  by  the  name  of  the  Governor  and  Company 
of  the  Colony  of  Connecticut  in  New-England,  in  Amer- 
ica.    It  ordained,  that  two  general  assemblies  shall  be 
annually  held ;  and  that  the  assembly  shall  consist  of  a 
governor,  deputy  governor,  twelve  assistants,  and  two 
deputies,  from  every  town  or  city,  to  be  chosen  by  the 
freemen,  (the  charter  nominating  the  first  governor  and 
assistants.)     The  general  assembly  had  authority  to  ap- 
point judicatories,  make  freemen,  elect  officers,  estab- 
lish laws,  and  ordinances  "not  contrary  to  the  laws  of 
this  realm  of  England,"  to  punish  offences  "  according 
to  the  course  of  other  corporations  within  this  our  king- 
dom of  England,"  to  assemble  the  inhabitants  in  martial 
array  for  the  common  defence,  and  to  exercise  martial 
law  in  cases  of  necessity.    The  lands  were  to  be  holden 
as  of  the  manor  of  East  Greenwich,  in  free  and  common 
soccage.     The  inhabitants  and  their  children  born  there 
were  to  enjoy  and  possess  all  the  liberties  and  immuni- 
ties of  free,  natural-born  subjects,  in  the  same  manner, 
as  if  born  within  the  realm.     The  right  of  general  fish- 
ery on  the  coasts  was  reserved  to  all  subjects ;  and 
finally  the  territory  bounded  on  the  east  by  the  Narra- 


36  HISTORY  OF  THE  COLONIES.  [bOOK  I. 

ganset  river,  where  it  falls  into  the  sea,  and  on  the 
north  by  Massachusetts,  and  on  the  south  by  the  sea, 
and  in  longitude,  as  the  line  of  the  Massachusetts  colo- 
ny running  from  east  to  west,  that  from  Narraganset 
bay  to  the  South  sea,  was  granted  and  confirmed  to  the 
colony.  The  charter  is  silent  in  regard  to  religious 
rights  and  privileges. 

^  37.  In  1685,  a  quo  warranto  was  issued  by  king 
James  against  the  colony  for  the  repeal  of  the  charter. 
No  judgment  appears  to  have  been  rendered  upon  it ; 
but  the  colony  offered  its  submission  to  the  will  of  the 
crown;  and  Sir  Edmund  Andros,  in  1687,  went  to 
Hartford,  and  in  the  name  of  the  crown,  declared  the 
government  dissolved.  They  did  not,  however,  sur- 
render the  charter ;  but  secreted  it  in  an  oak,  which 
is  still  venerated  ;  and  immediately  after  the  revolution 
of  1688,  they  resumed  the  exercise  of  all  its  powers. 
The  successors  of  the  Stuarts  silently  suffered  them 
to  retain  it  until  the  American  Revolution,  without  any 
struggle  or  resistance.  The  charter  continued  to  be 
maintained,  as  a  fundamental  law  of  the  State,  until  the 
year  1818,  when  a  new  constitution  of  government  was 
framed  and  adopted  by  the  people. 


CH.  VIII.]  RHODE    ISLAND.  37 

CHAPTER  VIII. 


RHODE  ISLAND. 


^  38.  Rhode  Island  was  originally  settled  by  emi- 
grants from  Massachusetts,  fleeing  thither  to  escape  from 
religious  persecution;  and  it  still  boasts  of  Roger  Wil- 
liams, as  its  founder,  and  as  the  early  defender  of  relig- 
ious freedom  and  the  rights  of  conscience.  One  body  of 
them  purchased  the  island,  which  has  given  the  name 
to  the  State,  and  another  the  territory  of  the  Providence 
Plantations  from  the  Indians,  and  began  their  settle- 
ments in  both  places  nearly  at  the  same  period,  viz.  in 
1636  and  1638.  They  entered  into  separate  volunta- 
ry associations  of  government.  But  finding  their 
associations  not  sufficient  to  protect  them  against 
the  encroachments  of  Massachusetts,  and  having  no 
tide  under  any  of  the  royal  patents,  they  sent  Roger 
Williams  to  England,  in  1643,  to  procure  a  surer  foun- 
dation both  of  title  and  government.  He  succeeded  in 
obtaining  from  the  Earl  of  Warwick  (in  1643)  a  charter 
of  incorporation  of  Providence  Plantations ;  and  also, 
in  1644,  a  charter  from  the  two  houses  of  parliament 
(Charles  the  First  being  then  driven  from  his  capital) 
for  the  incorporation  of  the  towns  of  Providence,  New- 
port, and  Portsmouth,  for  the  absolute  government  of 
themselves,  but  according  to  the  laws  of  England. 

§  39.  Under  this  charter  an  assembly  was  convened, 
in  1647,  consisting  of  the  collective  freemen  of  the  vari- 
ous plantations.  The  council  of  state  of  the  common- 
wealth soon  afterwards  interfered  to  suspend  their  gov- 
ernment ;  but  the  distractions  at  home  prevented  any 
serious  interference  by  parliament  in  the  administradon 


38  HISTORY  OF  THE  COLONIES.  [bOOK  I. 

of  their  affairs;  and  they  continued  to  act  under  their 
former  government  until  the  restoration  of  Charles  the 
Second.  That  event  seems  to  have  given  great  satis- 
faction to  these  plantations.  They  immediately  pro- 
claimed the  king,  and  sent  an  agent  to  England  ;  and 
in  July,  1663,  after  some  opposition  they  succeeded  in 
obtaining  a  charter  from  the  crown. 

^  40.  That  charter  incorporated  the  inhabitants  by 
the  name  of  the  Governor  and  Company  of  the  Eng- 
lish Colony  of  Hhode  Island  and  Providence  Plantations 
in  New-England  in  America,  conferring  on  them  the 
usual  powers  of  corporations.  The  executive  power 
was  lodged  in  a  governor,  deputy  governor,  and  ten 
assistants,  chosen  by  the  freemen.  The  supreme 
legislative  authority  was  vested  in  a  general  assembly, 
consisting  of  a  governor,  deputy  governor,  ten  assist- 
ants, and  deputies  from  the  respective  towns,  chosen  by 
the  freemen,  (six  for  Newport,  four  for  Providence, 
Portsmouth,  and  Warwick,  and  two  for  other  towns,) 
the  governor  or  deputy  and  six  assistants  being  always 
present.  The  general  assembly  were  authorized  to 
admit  freemen,  choose  officers,  make  laws  and  ordi- 
nances, so  as  that  they  were  "  not  contrary  and  repug- 
nant unto,  but  as  near  as  may  be  agreeable  to,  the  laws 
of  this  our  realm  of  England,  considering  the  nature  and 
constitution  of  the  place  and  people;  to  create  and  organ- 
ize courts ;  to  punish  offences  according  to  the  course 
of  other  corporations  in  England;"  to  array  the  mar- 
tial force  of  the  colony  for  the  common  defence,  and 
enforce  martial  law ;  and  to  exercise  other  important 
powers  and  prerogatives.  It  further  provided  for  a  free 
fishery  on  the  coasts  ;  and  that  all  the  inhabitants  and 
children  born  there  should  enjoy  all  the  hberties  and 
immunities  of  free  and  natural  subjects  born  within  the 


CH.  VIII.]  RHODE    ISLAND.  39 

realm  of  England.  It  then  granted  and  confirmed 
unto  them  all  that  part  of  the  king's  dominions  in 
New-England  containing  the  Narraganset  bay  and  the 
countries  and  parts  adjacent,  bounded  westerly  to  the 
middle  of  Pawcatuck  river,  and  so  along  the  river  north- 
ward to  the  head  thereof,  thence  by  a  straight  line  due 
north,  until  it  meet  the  south  hne  of  Massachusetts,  ex- 
tending easterly  three  English  miles  to  the  most  east- 
ern and  northeastern  parts  of  Narraganset  bay,  as  the 
bay  extendeth  southerly  unto  the  mouth  of  the  river 
running  towards  Providence,  and  thence  along  the  east- 
erly side  or  bank  of  the  said  river  up  to  the  falls,  call- 
ed Patucket  Falls,  and  thence  in  a  straight  line  due  north 
till  it  meets  the  Massachusetts  line.  The  territory  was 
to  be  holden  as  of  the  manor  of  East  Greenwich  in  free 
and  common  soccage.  It  further  secured  a  free  trade 
with  all  the  other  colonies. 

^  41.  It  is  said,  that  the  general  conduct  of  Rhode 
Island  seems  to  have  given  entire  satisfaction  to  Charles 
the  Second  during  the  residue  of  his  reign.  Upon  the 
accession  of  James,  the  inhabitants  were  among  the  first 
to  offer  their  congratulations;  and  to  ask  protection  for 
their  chartered  rights.  That  monarch  however  disre- 
garded their  request.  They  were  accused  of  a  violation 
of  their  charter,  and  a  quo  loarranto  was  filed  against 
them.  They  immediately  resolved,  without  much  hesi- 
tation, not  to  contend  with  the  crown,  but  to  surrender 
their  charter ;  and  passed  an  act  for  that  purpose,  which 
was  afterwards  suppressed.  In  December,  1686,  Sir 
Edmund  Andros,  agreeably  to  his  orders,  dissolved 
their  government,  and  assumed  the  administration  of 
the  colony.  The  revolution  of  1 688  put  an  end  to  his 
power;  and  the  colony  immediately  afterwards  resum- 
ed its  charter,  and,  though  not  without  some  interrup- 


40  HISTORY  OF  THE  COLONIES.  [bOOK  I.. 

tions,  continued  to  maintain  and  exercise  its  powers, 
down  to  the  period  of  the  American  Revolution.  It 
still  continues  to  act  under  the  same  charter,  as  a  fun- 
damental law,  it  being  the  only  state  in  the  Unions 
which  has  not  formed  a  new  constitution  of  government.. 
It  seems,  that  until  the  year  1696  the  governor,  assist- 
ants, and  deputies  of  the  towns  sat  together.  But  byr 
a  law  then  passed  they  were  separated,  and  the  depu- 
ties acted  a^  a  lower  house,  and  the  governor  and 
assistants  as  an  upper  house. 

§  42.  We  have  now  finished  our  review  of  all  the 
successive  colonies  established  in  New-England.  The 
remark  of  Chalmers  is  in  general  well  founded:  "Orig- 
inally settled  (says  he)  by  the  same  kind  of  people,  a 
similar  policy  naturally  rooted  in  all  the  colonies  of 
New-England.  Their  forms  of  government,  their  laws, 
their  courts  of  justice,  their  manners,  and  their  religious- 
tenets,  which  gave  birth  to  all  these,  were  nearly  the 
same."  Still,  however,  the  remark  is  subject  to  many 
local  qualifications. 


CH.  IX.]  MARYLAND.  41 


CHAPTER  IX. 

MARYLAND. 

^  43.  The  province  of  Maryland  was  included  orig- 
inally in  the  patent  of  the  Southern  or  Virginia  company; 
and  upon  the  dissolution  of  that  company  it  reverted  to 
the  crown.  King  Charles  the  First,  on  the  20th  June, 
1632,  granted  it  by  patent  to  Cecilius  Calvert  Lord 
Baltimore,  the  son  of  George  Calvert  Lord  Baltimore, 
to  whom  the  patent  was  intended  to  have  been  made, 
but  he  died  before  it  was  executed.  By  the  charter, 
the  king  erected  it  into  a  province,  and  gave  it  the  name 
of  Maryland,  in  honor  of  his  Queen,  Henrietta  Maria,  the 
daughter  of  Henry  the  Fourth  of  France,  to  be  held  of 
the  crown  of  England,  he  yearly,  for  ever,  rendering 
two  Indian  arrows.  The  territory  w^as  bounded  by  a 
right  Hne  drawn  from  Watkins's  Point,  on  Chesapeake 
bay,  to  the  ocean  on  the  east,  thence  to  that  part  of  the 
estuary  of  Delaware  on  the  north,  which  lieth  under  the 
40th  degree,  where  New-England  is  terminated;  thence 
in  a  right  line  by  the  degree  aforesaid  to  the  meridian  of 
the  fountain  of  Potomac;  thence  following  its  course  by 
the  further  bank  to  its  confluence  with  the  Chesapeake, 
and  thence  to  Watkins's  Point. 

§  44.  The  territory  thus  severed  from  Virginia,  was 
made  immediately  subject  to  the  crown,  and  was  grant- 
ed in  full  and  absolute  propriety  to  Lord  Baltimore  and 
his  heirs,  saving  the  allegiance  and  sovereign  dominion 
to  the  crown,  with  all  the  rights,  regalities,  and  prerog- 
atives, which  the  Bishop  of  Durham  enjoyed  in  that 
palatinate,  to  be  held  of  the  crown  as  of  Windsor  Cas- 

Abr,  6 


42  HISTORY  OF  THE  COLONIES.  [bOOK  I. 

tie,  in  the  county  of  Berks,  in  free  and  common  soccage, 
and  not  in  capite,  or  by  knights'  service.  The  charter  fur- 
ther provided,  that  the  proprietary  should  have  author- 
ity by  and  with  the  consent  of  the  freemen,  or  their 
delegates  assembled  for  that  purpose,  to  make  all  lav^s 
for  the  province,  "  so  that  such  laws  be  consonant  to 
reason,  and  not  repugnant  or  contrary,  but,  as  far  as 
conveniently  might  be,  agreeable  to  the  laws,  statutes, 
customs,  and  rights  of  this  our  realm  of  England." 
The  proprietary  was  also  vested  with  full  executive  pow- 
er; and  the  establishment  of  courts  of  justice  w^as  pro- 
vided for.  The  proprietary  was  also  authorized  to  levy 
subsidies  with  the  assent  of  the  people  in  assembly. 
The  inhabitants  and  their  children  were  to  enjoy  all  the 
rights,  immunities,  and  privileges  of  subjects  born  in 
England.  The  right  of  the  advowsons  of  the  churches, 
according  to  the  establishment  of  England,  and  the 
right  to  create  manors  and  courts  baron,  to  confer  titles 
of  dignity,  to  erect  ports,  and  other  regalities,  were 
expressly  given  to  the  proprietary.  An  exemption  of 
the  colonists  from  all  talliages  on  their  goods  and  es- 
tates, to  be  imposed  by  the  crown,  was  expressly  cov- 
enanted for  in  perpetuity  ;  an  exemption,  which  had 
been  conferred  on  other  colonies  for  years  only.  Li- 
cense was  granted  to  all  subjects  to  transport  them- 
selves to  the  province ;  and  its  products  were  to  be 
imported  into  England  and  Ireland  under  such  taxes 
only,  as  were  paid  by  other  subjects.  And  the  usual 
powers  in  other  charters  to  repel  invasions,  to  sup- 
press rebellions,  &c.  were  also  conferred  on  the  pro- 
prietary. 

^  45.  Such  is  the  substance  of  the  patent.     And 
Chalmers  has  with  some  pride  asserted,  that  "Mary- 


CH.  IX.]  MARYLAND.  43 

land  has  always  enjoyed  the  unrivalled  honour  of  being 
the  first  colony,  which  was  erected  into  a  province  of 
the  EngUsh  empire,  and  governed  regularly  by  laws 
enacted  in  a  provincial  legislature." 


44  HISTORY  OF  THE  COLONIES.  [bOOK  I. 

CHAPTER  X. 

NEW-YORK. 

§  46.  JSTew-York  was  originally  settled  by  emi- 
grants from  Holland,     But   the   English  government 
seems  at  all  times  to  have  disputed  the  right  of  the 
Dutch  to  make  any  settlement  in  America ;  and  the 
territory  occupied  by  them  was  unquestionably  within 
the  chartered  limits  of  New -England  as  granted  to  the 
council  of  Plymouth.     Charles  the  Second,  soon  after 
his  restoration,  instigated  as  much  by  personal  antipa- 
thy, as  by  a  regard  for  the  interest  of  the  crown,  deter- 
mined to  maintain  his  right,  and  in  March,  1664,  granted 
a  patent  to  his  brother,  the  Duke  of  York  and  Albany, 
by  which  he  conveyed  to  him  the  region  extending 
from  the  western  bank  of  Connecticut  to  the  eastern 
shore  of  the  Delaware,  together  with  Long  Island,  and 
conferred  on  him  the  powers  of  government,  civil  and 
military.     Authority  was  given  (among  other  things)  to 
correct,  punish,  pardon,  govern,  and  rule  all  subjects, 
that  should  inhabit  the  territory  according  to  such  laws, 
ordinances,  &c.  as  the  Duke  should  establish,  so  always 
that  the  same  "were  not  contrary,  but  as  near  as  might 
be  agreeable  to  the  laws  and  statutes  and  government 
of  the  realm  of  England,"  saving  to  the  crown  a  right  to 
hear  and  determine  all  appeals.     The  usual  authority 
was  also  given  to  use  and  exercise  martial  law  in  cases 
of  rebellion,  insurrection,  mutiny,  and  invasion.     A  part 
of  this  tract  was  afterwards  conveyed  by  the  Duke,  by 
deed  of  lease  and  release,  in  June,  of  the  same  year,  to 
Lord  Berkeley  and  Sir  George  Carteret.     By  this  lat- 
ter grant  they  were  entitled  to  all  the  tract  adjacent  to 


CH.  X.]  NEW- YORK.  '  45 

New-England,  lying  westward  of  Long  Island,  and 
bounded  on  the  east  by  the  liiain  sea  and  partly  by 
Hudson's  river,  and  upon  the  west  by  Delaware  bay 
or  river,  and  extending  southv/ard  to  the  main  ocean  as 
far  as  Cape  May  at  the  mouth  of  Delaware  bay,  and  to 
the  northward  as  far  as  the  northernmost  branch  of 
Delaware  bay  or  river,  which  is  41  degrees  40  min- 
utes latitude ;  which  tract  was  to  be  called  by  the  name 
of  Nova  Caesarea,  or  New-Jersey.  So  that  the^terri- 
tory  then  claimed  by  the  Dutch  as  the  New-Nether- 
lands was  divided  into  the  colonies  of  New-York  and 
New-Jersey. 

^  47.  In  September,  1664,  the  Dutch  colony  was 
surprised  by  a  British  armament,  which  arrived  on  the 
coast,  and  was  compelled  to  surrender  to  its  authority. 
By  the  terms  of  the  capitulation  the  inhabitants  were  to 
continue  free  denizens,  and  to  enjoy  their  property. 
The  Dutch  inhabitants  were  to  enjoy  the  liberty  of 
their  conscience  in  divine  worship  and  church  discipline; 
and  their  own  customs  concerning  their  inheritances. 
The  government  was  instantly  assumed  by  right  of  con- 
quest in  behalf  of  the  Duke  of  York,  the  proprietary, 
and  the  territory  was  called  New-York.  Liberty  of 
conscience  was  granted  to  all  settlers.  No  laws  con- 
trary to  those  of  England  were  allowed;  and  taxes 
were  to  be  levied  by  authority  of  a  general  assembly. 
The  peace  of  Breda,  in  1667,  confirmed  the  title  in  the 
conquerors  by  the  rule  of  uti  possidetis.  In  the 
next  Dutch  war  the  colony  was  [reconquered ;  but  it 
was  restored  to  the  Duke  of  York  upon  the  succeeding 
peace  of  1674. 

^  48.  As  the  validity  of  the  original  grant  to  the 
Duke  of  York,  while  the  Dutch  were  in  quiet  possession 
of  the  country,  was  deemed  questionable,  he  thought  it 


46  HISTORY  OF  THE  COLONIES.  [bOOK  I. 

prudent  to  ask,  and  he  accordingly  obtained,  a  new 
grant  from  the  crown  in  June,  1 674.  It  confirmed  the 
former  grant,  and  empowered  him  to  govern  the  inhab- 
itants by  such  ordinances,  as  he  or  his  assigns  should 
establish.  It  authorized  him  to  administer  justice  accord- 
ing to  the  laws  of  England,  allowing  an  appeal  to  the 
king  in  council.  It  prohibited  trade  thither  without  his 
permission ;  and  allowed  the  colonists  to  import  mer- 
chandize upon  paying  customs  according  to  the  laws  of 
the  realm.  Under  this  charter  he  ruled  the  province 
until  his  accession  to  the  throne.  No  general  assem- 
bly was  called  for  several  years ;  and  the  people  having 
become  clamorous  for  the  privileges  enjoyed  by  other 
colonists,  the  governor  was,  in  1682,  authorized  to  call 
an  assembly,  which  was  empowered  to  make  laws  for 
(he  general  regulation  of  the  state,  which,  however, 
were  of  no  force  without  the  ratification  of  the  proprie- 
tary. Upon  the  revolution  of  1 688,  the  people  of  New- 
York  immediately  took  side  in  favour  of  the  Prince  of 
Orange.  From  this  era  they  were  deemed  entitled  to 
all  the  privileges  of  British  subjects,  inhabiting  a  depen- 
dent province  of  the  state.  No  charter  was  subsequently 
granted  to  them  by  the  crown;  and  therefore  they 
derived  no  peculiar  privileges  fi*om  that  source. 


CH.  XI.]  NEW-JERSEY.  47 


CHAPTER  XI. 

NEW-JERSEY. 

§  49.  New-Jersey,  as  we  have  already  seen,  was 
a  part  of  the  territory  granted  to  the  Duke  of  York, 
and  was  by  him  granted,  in  June,  1664,  to  Lord  Berke- 
ley and  Sir  George  Carteret,  with  all  the  rights,  royal- 
ties, and  powers  of  government,  which  he  himself  pos- 
sessed. The  proprietors,  for  the  better  setdement  of 
the  territory,  agreed  in  February,  1664-1665,  upon  a 
constitution  •  or  concession  of  government,  which  was 
so  much  relished,  that  the  eastern  part  of  the  province 
soon  contained  a  considerable  population. 

§  50.  This  constitution  continued  until  the  province 
was  divided,  in  1676,  between  the  proprietors.  By  that 
division  East  New-Jersey  was  assigned  to  Carteret ; 
and  West  New-Jersey  to  William  Penn  and  others,  who 
had  purchased  of  Lord  Berkeley.  Carteret  then  ex- 
plained and  confirmed  the  former  concessions  for  the 
territory  thus  exclusively  belonging  to  himself.  The 
proprietors  also  of  West  Jersey  drew  up  another  set 
of  concessions  for  the  settlers  within  that  territory. 
They  contain  very  ample  privileges  to  the  people. 

§  51.  Whether  these  concessions  became  the  gene- 
ral law  of  the  province  seems  involved  in  some  obscu- 
rity. There  were  many  difficulties  and  contests  for  ju- 
risdiction between  the  governors  of  the  Duke  of  York 
and  the  proprietors  of  the  Jerseys;  and  these  were  not 
settled,  until  after  the  Duke,  in  1680,  finally  surrender- 
ed all  right  to  both  by  letters  patent  granted  to  the  re- 
spective proprietors.  In  1 68 1 ,  the  governor  of  the  pro- 
prietors of  West  Jersey,  with  the  consent  of  the  general 


48  HISTORY  OF  THE  COLONIES.  [BOOK  I. 

assembly,  made  a  frame  of  government  embracing  some 
of  the  fundamentals  in  the  former  concessions. 

§  52.  Carteret  died  in  1679,  and  being  sole  proprie- 
tor of  East  Jersey,  by  his  will  he  ordered  it  to  be  sold  for 
payment  of  his  debts  ;  and  it  was  accordingly  sold  to 
William  Penn  and  eleven  others,  who  were  called  the 
Twelve  Proprietors.  They  afterwards  took  twelve  more 
into  the  proprietary  ship  ;  and  to  the  twenty-four  thus 
formed,  the  Duke  of  York,  in  March,  1682,  made  his 
third  and  last  grant  of  East  Jersey.     Very  serious  dis- 
sensions soon  arose  between  the  two  provinces  them- 
selves, as  well  as  between  them  and  New- York;  which 
banished  moderation  from  their  councils,  and  threaten- 
ed the  most  serious  calamities.     A  quo  warranto  was 
ordered  by  the  crown  in  1686,  to  be  issued  against 
both    provinces.     East    Jersey   immediately   offered 
to  be  annexed  to   West  Jersey,  and  to  submit  to  a 
governor  appointed  by  the  crown.     Soon  afterwards 
the  crown  ordered  the  Jerseys  to  be  annexed  to  New- 
England  ;  and  the  proprietors  of  East-Jersey  made  a 
formal  surrender  of  its  patent,  praying  only  for  a  new 
grant,  securing  their  right  of  soil.     Before  this  request 
could  be  granted,  the  revolution  of  1688  took  place, 
and  they  passed  under  the  allegiance  of  a  new  sove- 
reign. 

^  63.  From  this  period  both  of  the  provinces  were 
in  a  state  of  great  confusion,  and  distraction ;  and  re- 
mained so,  until  the  proprietors  of  both  made  a  formal 
surrender  of  all  their  powers  of  government,  but  not  of 
their  lands,  to  Queen  Anne,  in  April,  1 702.  The  Queen 
immediately  reunited  both  provinces  into  one  prov- 
ince; and  by  commission  appointed  a  governor  over 
them.  He  was  thereby  authorized  to  govern  with  the 
assistance  of  a  council,  and  to  call  general  assemblies  of 


CH.  XI.]  KEW-JERSEY.  49 

representatives  of  the  people  to  be  chosen  by  the  free- 
holders, who  were  required  to  take  the  oath  of  allegi- 
ance and  supremacy,  and  the  test  provided  by  the  acts 
of  Parliament.  The  general  assembly,  with  the  consent 
of  the  governor  and  council,  were  authorized  to  make 
laws  and  ordinances  for  the  welfare  of  the  people  "not 
repugnant,  but,  as  near  as  may  be,  agreeable  unto  the 
laws  and  statutes  of  this  our  kingdom  of  England;" 
which  laws  were,  however,  to  be  subject  to  the  appro- 
bation or  dissent  of  the  crown.  The  governor,  with 
the  consent  of  the  council,  was  to  erect  courts  of  justice; 
to  appoint  judges  and  other  officers ;  to  collate  to 
churches  and  benefices  ;  and  to  command  the  military 
force.  Liberty  of  conscience  was  allowed  to  all  per- 
sons but  Papists. 

^54.  From  this  time  to  the  American  Revolution 
the  province  was  governed  without  any  charter  under 
royal  commissions,  substantially  in  the  manner  pointed 
out  in  the  first.  The  people  always  strenuously  con- 
tended for  the  rights  and  privileges  guaranteed  to  them 
by  the  former  concessions ;  and  many  struggles  occur- 
red from  time  to  time  between  their  representatives, 
and  the  royal  governors  on  this  subject. 


Abr. 


50  HISTORY   OF  THE  COLONIES.  [bOOK  I, 


CHAPTER  XII. 

PENNSYLVANIA. 

§  55.  Pennsylvania  was  originally  settled  by  dif- 
ferent detachments  of  planters  under  various  authorities, 
Dutch,  Swedes,  and  others,  which  at  different  times 
occupied  portions  of  land  on  South  or  Delaware  river. 
The  ascendency  was  finally  obtained  over  these  setde- 
ments  by  the  governors  of  New-York,  acting  under 
the  charter  of  1664,  to  the  Duke  of  York.  Chalmers, 
however,  does  not  scruple  to  say,  that  "it  is  a  singular 
circumstance  in  the  history  of  this  [then]  inconsidera- 
ble colony,  that  it  seems  to  have  been  at  all  Umes  gov- 
erned by  usurpers,  because  their  titles  were  defective." 
It  continued  in  a  feeble  state,  until  the  celebrated  Wil- 
liam Penn,  in  March,  1681,  obtained  a  patent  from 
Charles  the  Second,  by  which  he  became  the  proprie- 
tary of  an  ample  territory,  which  in  honor  of  his  father 
was  called  Pennsylvania.  The  boundaries  described  in 
the  charter  were  on  the  East  by  Delaware  river  from 
twelve  miles'  distance  northwards  of  New-Casde  town 
to  the  43d  degree  of  north  latitude,  if  the  said  river  doth 
extend  so  far  northward ;  but  if  not,  then  by  said 
river  so  far  as  it  doth  extend ;  and  from  the  head  of  the 
river  the  eastern  bounds  are  to  be  determined  by  a 
meridian  Une  to  be  drawn  from  the  head  of  said 
river  unto  the  said  43d  degree  of  north  latitude.  The 
said  lands  to  extend  westward  five  degrees  in  longitude, 
to  be  computed  from  the  said  eastern  bounds,  and  the 
said  lands  to  be  bounded  on  the  north  by  the  beginning 
of  the  43d  degree  of  north  latitude ;  and  on  the  south 
by  a  cu-cle  drawn  at  twelve  miles'  distance  from  New- 


CH.  XH.]  PENNSYLVANIA.  61 

Castle,  northward  and  westward,  to  the  beginning  of 
the  40th  degree  of  northern  latitude ;  and  then  by  a 
straight  line  westward  to  the  limits  of  the  longitude 
above  mentioned. 

§  56.  The  charter  constituted  Penn  the  true  and 
absolute  proprietary  of  the  territory  thus  described, 
(saving  to  the  crown  the  sovereignty  of  the  country,  and 
the  allegiance  of  the  proprietary  and  the  inhabitants,) 
to  be  holden  of  the  crown  as  of  the  castle  of  Windsor 
in  Berks,  in  free  and  common  soccage,  and  not  in  cap- 
ite,  or  by  knight  service ;  and  erected  it  into  a  province 
and  seignory  by  the  name  of  Pennsylvania.  It  autho- 
rized the  proprietary  and  his  heirs  and  successors  to 
make  all  laws  for  raising  money  and  other  purposes, 
with  the  assent  of  the  freemen  of  the  country,  or  their 
deputies  assembled  for  the  purpose.  But  "  the  same 
laws  were  to  be  consonant  to  reason,  and  not  repugnant 
or  contrary,  but,  as  near  as  conveniently  may  be,  agree- 
able to  law  and  statutes  and  rights  of  this  our  kingdom 
of  England."  The  laws  for  the  descent  and  enjoy- 
ment of  lands,  and  succession  to  goods,  and  of  felonies, 
to  be  according  to  the  course  in  England,  until  altered 
by  the  assembly.  All  laws  were  lo  be  sent  to  England 
within  five  years  after  the  making  of  them,  and,  if  dis- 
approved of  by  the  crown  within  six  months,  to  be- 
come null  and  void.  It  also  authorized  the  proprie- 
tary to  appoint  judges  and  other  officers;  to  pardon  and 
reprieve  criminals  ;  to  establish  courts  of  justice,  with  a 
right  of  appeal  to  the  crown  from  all  judgments ;  to 
create  cities  and  other  corporations ;  to  erect  ports, 
and  manors,  and  courts  baron  in  such  manors.  Liberty 
was  allowed  to  subjects  to  transport  themselves  and 
their  goods  to  the  province  ;  and  to  import  the  products 
of  the  province  into  England ;  and  to  export  them  from 


52  HISTORY  OF    THE  COLONIES.  [bODK  I. 

thence  within  one  jear,  the  inhabitants  observing  the 
acts  of  navigation,  and  all  other  laws  in  this  behalf  made. 
It  was  further  stipulated,  that  the  crown  should  levy  no 
tax,  custom,  or  imposition  upon  the  inhabitants,  or  their 
goods,  unless  by  the  consent  of  the  proprietary  or  as- 
sembly, "  or  by  act  of  Parliament  in  England."  Such 
are  the  most  important  clauses  of  this  charter,  which 
has  been  deemed  one  of  the  best  drawn  of  the  colonial 
charters,  and  which  underwent  the  revision,  not  merely 
of  the  law  officers  of  the  crown,  but  of  the  then  Lord 
Chief  Justice  (North)  of  England.  It  has  been  re- 
marked, as  a  singular  omission  in  this  charter,  that  there 
is  no  provision,  that  the  inhabitants  and  their  children 
shall  be  deemed  British  subjects,  and  entided  to  all  the 
liberties  and  immunities  thereof,  such  a  clause  being 
found  in  every  other  charter.  Chalmers  has  observed, 
that  the  clause  was  wholly  unnecessary,  as  the  allegi- 
ance to  the  crown  was  reserved ;  and  the  common  law 
thence  inferred,  that  all  the  inhabitants  were  subjects, 
and  of  course  were  entitled  to  all  the  privileges  of 
Englishmen. 

^  57.  Penn  immediately  invited  emigration  to  his 
province,  by  holding  out  concessions  of  a  very  liberal 
nature  to  all  setders ;  and  under  his  benign  and  enlight- 
ened policy  a  foundation  was  early  laid  for  the  estab- 
hshment  of  a  government  and  laws,  which  have  been 
justly  celebrated  for  their  moderation,  wisdom,  and  just 
protection  of  the  rights  and  liberties  of  the  people. 

§  58.  It  was  soon  found  that  the  originaJ  frame  of 
government,  draw^n  up  before  any  setdements  were 
made,  was  ill  adapted  to  the  state  of  things  in  an  infant 
colony.  Accordingly  it  was  laid  aside,  and  a  new  frame 
of  government  was,  with  the  consent  of  the  General 
Assembly,  established  in  1683.     In  1692  Penn  was 


en.  XII.]  PENNSYLVANIA.  53 

deprived  of  the  government  of  Pennsylvania  by  William 
and  Mary  ;  but  it  was  again  restored  to  him  in  the  suc- 
ceeding year.  A  third  frame  of  government  was  estab- 
lished in  1696.  This  again  was  surrendered,  and  a 
new  final  charter  of  govermnent  was,  in  October,  1701, 
with  the  consent  of  the  General  Assembly,  established, 
under  which  the  province  continued  to  be  governed 
down  to  the  period  of  the  American  Revolution.  It 
provided  for  full  liberty  of  conscience  and  worship ;  and 
for  the  right  of  all  persons,  professing  to  believe  in  Jesus 
Christ,  to  serve  the  government  in  any  capacity.  An 
annual  assembly  was  to  be  chosen  of  delegates  from 
each  county,  and  to  have  the  usual  legislative  authority 
of  other  colonial  assemblies,  and  also  power  to  nominate 
certain  persons  for  office  to  the  governor.  The  laws 
were  to  be  subject  to  the  approbation  of  the  governor, 
who  had  a  council  of  state  to  assist  him  in  the  govern- 
ment. Provision  was  made  in  the  same  charter,  that 
if  the  representatives  of  the  province,  and  territories, 
(meaning,  by  territories,  the  three  counties  of  Delaware,) 
should  not  agree  to  join  together  in  legislation,  they 
should  be  represented  in  distinct  assemblies. 


54  HISTORY  OF  THE  COLONIES.  [bOOK  J. 

CHAPTER  XIII. 


DELAWARE. 


^  59.  After  Penn  had  become  proprietary  of 
Pennsylvania,  he  purchased  of  the  Duke  of  York,  in 
1682,  all  his  right  and  interest  in  the  territory,  after- 
wards called  the  Three  Lower  Counties  of  Delaware, 
extending  from  the  south  boundary  of  the  Province,  and 
situated  on  the  western  side  of  the  river  and  bay  of 
Delaware  to  Cape  Henlopen,  beyond  or  south  of  Lew- 
istown ;  and  the  three  counties  took  the  names  of  New- 
Casde,  Kent,  and  Sussex.  At  this  time  they  were 
inhabited  principally  by  Dutch  and  Swedes  ;  and  seem 
to  have  constituted  an  appendage  to  the  government  of 
New- York. 

^  60.  In  the  same  year,  with  the  consent  of  the 
people,  an  act  of  union  with  the  province  of  Pennsyl- 
vania was  passed,  and  an  act  of  settlement  of  the  frame 
of  government  in  a  general  assembly,  composed  of 
deputies  from  the  counties  of  Delaware  and  Penn- 
sylvania. By  this  act  the  three  counties  were,  under 
the  name  of  the  territories,  annexed  to  the  province;  and 
were  to  be  represented  in  the  General  Assembly,  gov- 
erned by  the  same  laws,  and  to  enjoy  the  same  privi- 
leges as  the  inhabitants  of  Pennsylvania.  Difficulties 
soon  afterwards  arose  between  the  deputies  of  the  Pro- 
vince and  those  of  the  Territories ;  and  after  various 
subordinate  arrangements,  a  final  separation  took  place 
between  them,  with  the  consent  of  the  proprietary, 
in  1703.      From  that  period  down  to  the  American 


CH.  XIII.] 


DELAWARE. 


55 


Revolution,  the  territories  were  governed  by  a  separate 
legislature  of  their  own,  pursuant  to  the  liberty  reserved 
to  them  by  a  clause  in  the  original  charter  or  frame  of 
government. 


56  HISTORY  OF  THE  COLONIES.  [bOOK  I. 

CHAPTER  XIV. 

NORTH  AND  SOUTH  CAROLINA. 

^  61.  We  next  come  to  the  consideration  of  the 
history  of  the  political  organization  of  the  Carolinas. 
That  level  region,  which  stretches  from  the  36th  degree 
of  north  latitude  to  Cape  Florida,  afforded  an  ample 
theatre  for  the  early  struggles  of  the  three  great  Euro- 
pean powers,  Spain,  France,  and  England,  to  maintain, 
or  acquire  an  exclusive  sovereignty.  Various  settle- 
ments were  made  under  the  auspices  of  each  of  the 
rival  powers,  and  a  common  fate  seemed  for  a  while  to 
attend  them  all.  In  March,  1662,  [April,  1663,]  Charles 
the  Second  made  a  grant  to  Lord  Clarendon  and  others 
of  the  territory  lying  on  the  Adantic  ocean,  and  extending 
from  the  north  end  of  the  island,  called  Hope -Is)  and,  in 
the  South  Virginian  seas,  and  within  36  degrees  of  north 
latitude ;  and  to  the  west  as  far  as  the  South  Seas;  and 
so  respectively  as  far  as  the  river  Mathias  upon  the 
coast  of  Florida,  and  within  31  degrees  of  north  lati- 
tude ;  and  so  west  in  a  direct  line  to  the  South  seas  ; 
and  erected  it  into  a  province,  by  the  name  of  Carolina, 
to  be  holden  as  of  the  manor  of  East- Greenwich  in 
Kent,  in  free  and  common  soccage,  and  not  in  capite, 
or  by  knight  service,  subject  immediately  to  the  crown, 
as  a  dependency,  for  ever. 

^  62.  In  1665,  the  proprietaries  obtained  from 
Charles  the  Second  a  second  charter,  with  an  enlarge- 
ment of  boundaries.  It  recited  the  grant  of  the  former 
charter,  and  declared  the  limits  to  extend  north  and  east- 
ward as  far  as  the  north  end  of  Currituck  river  or  inlet, 
upon  a  straight  westerly  line  to  Wyonoak  creek,  which 


CH.  XIV.]       NORTH  AND  SOUTH  CAROLINA.  57 

lies  within  or  about  36  degrees  30  minutes  of  north 
latitude  ;  and  so  west  in  a  direct  line  as  far  as  the  South 
seas;  and  south  and  westward  as  far  as  the  degrees  of 
29  inclusive  of  northern  latitude,  and  so  west  in  a  direct 
line  as  far  as  the  South  seas.  It  then  proceeded  to  con- 
stitute the  proprietaries  absolute  ov/ners  and  lords  of 
the  province,  saving  the  faith,  allegiance,  and  sovereign 
dominion  of  the  crown,  to  hold  the  same  as  of  the  ma- 
nor of  East-Greenwich  in  Kent,  in  free  and  common 
soccage,  and  not  in  capite,  or  by  knight  service ;  and  to 
possess  in  the  same  all  the  royalties,  jurisdictions,  and 
privileges  of  the  Bishop  of  Durham  in  his  diocese. 

^  6S,  In  the  year  1669,  the  proprietaries,  dissatis- 
fied with  the  systems  already  estabhshed  within  the 
province,  signed  a  fundamental  constitution  for  the  gov- 
ernment thereof,  the  object  of  which  is  declared  to  be, 
"that  we  may  estabhsh  a  government  agreeable  to  the 
monarchy,  of  which  Carohna  is  a  part,  that  we  may 
avoid  making  too  numerous  a  democracy."  This  con- 
stitution was  drawn  up  by  the  celebrated  John  Locke ; 
and  his  memory  has  been  often  reproached  with  the 
illiberal  character  of  some  of  the  articles,  the  oppressive 
servitude  of  others,  and  the  general  disregard  of  some 
of  those  maxims  of  religious  and  pohtical  liberty,  for 
which  he  has  in  his  treatises  of  government  and  other 
WTitings  contended  with  so  much  ability  and  success. 
Probably  there  were  many  circumstances  attending  this 
transaction,  which  are  now  unknown,  and  which  might 
well  have  moderated  the  severity  of  the  reproach,  and 
furnished,  if  not  a  justification,  at  least  some  apology 
for  this  extraordinary  instance  of  unwise  and  visionary 
legislation. 

§  64.  It  is  easy  to  perceive  that  this  celebrated  con- 
stitution was  ill  adapted  to  the  feelings,  the  wants,  and 

Abr.  8 


58  HISTORY    OF    THE    COLONIES.         [bOOK   I. 

the  opinions  of  the  colonists.  The  introduction  of  it, 
therefore,  was  resisted  by  the  people,  as  much  as  it 
could  be ;  and  indeed,  in  some  respects,  it  was  found 
impracticable.  Public  dissatisfaction  daily  increased  ; 
and  after  a  few  years'  experience  of  its  ill  arrange- 
ments, and  its  mischievous  tendency,  the  proprietaries, 
upon  the  application  of  the  people,  (in  1693,)  abroga- 
ted the  constitution,  and  restored  the  ancient  form  of 
government.  Thus  perished  the  labours  of  Mr.  Locke ; 
and  thus  perished  a  system,  under  the  administration 
of  which,  it  has  been  remarked,  the  Carolinians  had 
not  known  one  day  of  real  enjoyment,  and  that  intro- 
duced evils  and  disorders,  which  ended  only  with  the 
dissolution  of  the  proprietary  government.  Perhaps 
in  the  annals  of  the  world  there  is  not  to  be  found  a 
more  wholesome  lesson  of  the  utter  folly  of  all  efforts 
to  establish  forms  of  governments  upon  mere  theory ; 
and  of  the  dangers  of  legislation  without  consulting  the 
habits,  manners,  feelings,  and  opinions  of  the  people, 
upon  which  they  are  to  operate. 

§  65.  After  James  the  Second  came  to  the  throne, 
the  same  general  course  was  adopted  of  filing  a  quo 
warranto  against  the  proprietaries,  as  had  been  suc- 
cessful in  respect  to  the  colonies.  The  proprietaries, 
with  a  view  to  elude  the  storm,  prudently  offered  to 
surrender  their  charter,  and  thereby  gained  time.  Be- 
fore any  thing  definitive  took  place,  the  revolution  of 
1688  occurred,  which  put  an  end  to  the  hostile  pro- 
ceedings. In  April,  1698,  the  proprietaries  made 
another  system  of  fundamental  constitutions,  which 
embraced  many  of  those  propounded  in  the  first,  and, 
indeed,  was  manifestly  a  mere  amendment  of  them. 

^  66.  These  constitutions  (for  experience  does  not 
seem  to  have  imparted  more  wisdom  to  the  proprieta- 


CH.  XIV.]       NORTH    AND    SOUTH    CAROLINA,  89 1 

ries  on  this  subject)  contained  the  most  objectionable 
features  of  the  system  of  government,  of  the  former 
constitutions,  and  shared  a  common  fate. 

^  67.  There  was  at  this  period  a  space  ot  three 
hundred  miles  between  the  Southern  and  Northern 
settlements  of  Carolina ;  and  though  the  whole  prov- 
ince was  owned  by  the  same  proprietaries,  the  legisla- 
tion of  the  two  great  settlements  had  been  hitherto 
conducted  by  separate  and  distinct  assemblies,  some- 
times under  the  same  governor,  and  sometimes  under 
different  governors.  The  legislatures  continued  to  re- 
main distinct  down  to  the  period,  when  a  final  surren- 
der of  the  proprietary  charter  was  made  to  the  crown 
in  1729.  The  respecdve  territories  were  designated 
by  the  name  of  North  Carolina  and  South  Carolina, 
and  the  laws  of  each  obtained  a  like  appellation.  Cape 
Fear  seems  to  have  been  commonly  deemed,  in  the 
commissions  of  the  governor,  the  boundary  between 
the  two  colonies. 

§  68.  By  the  surrender  of  the  charter,  the  whole 
government  of  the  territory  was  vested  in  the  crown ; 
(it  had  been  in  fact  exercised  by  the  crown  ever  since 
the  overthrow  of  the  proprietary  government  in  1720 ;) 
and  henceforward  it  became  a  royal  province ;  and  was 
governed  by  commission  under  a  form  of  government 
substantially  like  that  established  in  the  other  royal 
provinces.  This  change  of  government  was  very 
acceptable  to  the  people,  and  gave  a  new  impulse  to 
their  industry  and  enterprise.  At  a  litde  later  period 
[1732],  for  the  convenience  of  the  inhabitants,  the 
province  was  divided;  and  the  divisions  were  dis- 
tinguished by  the  names  of  North  Carolina  and  South 
Carolina. 


60  HISTORY    OF    THE    COLONIES.  [bOOK    I. 

^  69.  The  form  of  government  conferred  on  Caro- 
lina, when  it  became  a  royal  province,  vs^as  in  sub- 
stance this.  It  consisted  of  a  governor  and  council 
appointed  by  the  crown,  and  an  assembly  chosen  by  the 
people,  and  these  three  branches  constituted  the  legis- 
lature. The  governor  convened,  prorogued,  and  dis- 
solved the  legislature,  and  had  a  negative  upon  the 
laws,  and  exercised  the  executive  authority.  He  pos- 
sessed also  the  powers  of  the  court  of  chancery,  of  the 
admiralty,  of  supreme  ordinary,  and  of  appointing  mag- 
istrates and  militia  officers.  All  laws  were  subject  to 
the  royal  approbation  or  dissent  5  but  were  in  the  mean 
time  in  full  force. 


CH.    XV.]  GEORGIA.  61 

CHAPTER  XV. 


GEORGIA. 


^  70.  In  the  same  year,  in  which  Carolina  was  divid- 
ed [1732],  a  project  was  formed  for  the  settlement  of  a 
colony  upon  the  unoccupied  territory  between  the 
rivers  Savannah  and  Altamaha.  The  object  of  the 
projectors  was  to  strengthen  the  province  of  Carolina, 
to  provide  a  maintenance  for  the  suffering  poor  of  the 
mother  country,  and  to  open  an  asylum  for  the  perse- 
cuted protestants  in  Europe ;  and  in  common  with  all 
the  other  colonies  to  attempt  the  conversion  and  civili- 
zation of  the  natives.  Upon  application,  George  the 
Second  granted  a  charter  to  the  company,  (consisting 
of  Lord  Percival  and  twenty  others,  among  whom  was 
the  celebrated  Oglethorpe,)  and  incorporated  them  by 
the  name  of  the  Trustees  for  establishing  the  Colony  of 
Georgia  in  America. 

^  71.  The  charter  was  obviously  intended  for  a  tem- 
porary duration  only ;  and  the  first  measures  adopted  by 
the  trustees,  granting  lands  in  tail  male,  to  be  held  by  a 
sort  of  military  service,  and  introducing  other  restric- 
tions, were  not  adapted  to  aid  the  original  design,  or 
foster  the  growth  of  the  colony.  It  continued  to  lan- 
guish, until  at  length  the  trustees,  wearied  with  their 
own  labours,  and  the  complaints  of  the  people,  in  June? 
1751,  surrendered  the  charter  to  the  crown.  Hence- 
forward it  was  governed  as  a  royal  province,  enjoying 
the  same  liberties  and  immunities  as  other  royal  prov- 
inces ;  and  in  process  of  time  it  began  to  flourish,  and 
at  the  period  of  the  American  Revolution,  it  had  attain- 
ed considerable  importance  among  the  colonies. 


62  HISTORY  OF  THE  COLONIES.  [bOOK  I. 

CHAPTER  XVI. 

GENERAL  REVIEW  OF  THE  COLONIES. 

^  72.  We  have  now  finished  our  brief  survey  of  the 
origin  and  political  history  of  the  colonies ;  and  here 
we  may  pause  for  a  short  time  for  the  purpose  of  some 
genera,!  reflections  upon  the  subject. 

^  73.  Plantations  or  colonies  in  distant  countries 
are  either,  such  as  are  acquired  by  occupying  and 
peopling  desert  and  uncultivated  regions  by  emigra- 
tions from  the  mother  country;  or  such  as,  being 
already  cultivated  and  organized,  are  acquired  by  con- 
quest or  cession  under  treaties.  There  is,  however,  a 
difference  between  these  two  species  of  colonies  in 
respect  to  the  laws,  by  which  they  are  governed,  at 
least  according  to  the  jurisprudence  of  the  common 
law.  If  an  uninhabited  country  is  discovered  and  planted 
by  British  subjects,  the  English  laws  are  said  to  be 
immediately  in  force  there ;  for  the  law  is  the  birth- 
right of  every  subject.  So  that  wherever  they  go,  they 
carry  their  laws  with  them ;  and  the  new  found  coun- 
try is  gaverned  by  them. 

§  74.  This  proposition,  however,  though  laid  down 
in  such  general  terms  by  very  high  authority,  requires 
many  hmitations,  and  is  to  be  understood  with  many 
restrictions.  Such  colonists  do  not  carry  with  them 
the  whole  body  of  the  English  laws,  as  they  then 
exist ;  for  many  of  them  must,  from  the  nature  of  the 
case,  be  wholly  inapplicable  to  their  situation,  and 
inconsistent  with  their  comfort  and  prosperity.  There 
is,   therefore,  this   necessary  limitation  implied,    that 


CH.  XVI.]  GENERAL    REVIEW.  63 

they  carry  with  them  all  the  laws  applicable  to  their 
situation,  and  not  repugnant  to  the  local  and  political 
circumstances,  in  which  they  are  placed. 

^  75.  Even  as  thus  stated,  the  proposition  is 
full  of  vagueness  and  perplexity ;  for  it  must  still  re- 
main a  question  of  intrinsic  difficulty  to  say,  what  laws 
are,  or  are  not  applicable  to  their  situation  ;  and  whether 
they  are  bound  by  the  present  state  of  things,  or  are 
at  liberty  to  apply  them  in  future  by  adoption,  as  the 
growth  or  interests  of  the  colony  may  dictate.  The 
English  rules  of  inheritance,  and  of  protection  from  per- 
sonal injuries,  the  rights  secured  by  Magna  Charta,  and 
the  remedial  course  in  the  administration  of  justice,  are 
examples  as  clear  perhaps  as  any,  which  can  be  stated, 
as  presumptively  adopted,  or  applicable.  And  yet  in 
the  infancy  of  a  colony  some  of  these  very  rights,  and 
privileges,  and  remedies,  and  rules,  may  be  in  fact  inap- 
plicable, or  inconvenient,  and  impolitic.  It  is  not  per- 
haps easy  to  settle,  what  parts  of  the  English  laws  are, 
or  are  not  in  force  in  any  such  colony,  until  either  by 
usage,  or  judicial  determination,  they  have  been  recog- 
nized as  of  absolute  force. 

^  76.  In  respect  to  conquered  and  ceded  coun- 
tries, which  have  already  laws  of  their  own,  a  different 
rule  prevails.  In  such  cases  the  crown  has  a  right  to 
abrogate  the  former  laws,  and  institute  new  ones.  But 
until  such  new  laws  are  promulgated,  the  old  laws  and 
customs  of  the  country  remain  in  full  force,  unless  so 
far  as  they  are  contrary  to  our  religion,  or  enact  any 
thing,  that  is  malum  in  se ;  for  in  all  such  cases  the 
laws  of  the  conquering  or  acquiring  country  shall  pre- 
vail. This  qualification  of  the  rule  arises  from  the  pre- 
sumption, that  the  crown  could  never  intend  to  sanc- 
tion laws  contrary  to  religion  or  sound  morals.    But 


64  HISTORY    OF    THE    COLONIES.  [bOOK  I. 

although  the  king  has  thus  the  power  to  change  the 
laws  of  ceded  and  conquered  countries,  the  power  is 
not  unlimited.  His  legislation  is  subordinate  to  the  au- 
thority of  parliament.  He  cannot  make  any  new 
change  contrary  to  fundamental  principles  ;  he  cannot 
exempt  an  inhabitant  from  that  particular  dominion,  as 
for  instance  from  the  laws  of  trade,  or  from  the  power 
of  parliament ;  and  he  cannot  give  him  privileges  ex- 
clusive of  other  subjects. 

^  77.  Mr.  Justice  Blackstone,  in  his  Commentaries, 
insists,  that  the  American  colonies  are  principally  to  be 
deemed  conquered,  or  ceded  countries.  His  language  is, 
"Our  American  Plantations  are  principally  of  this  latter 
sort,  [i.  e.  ceded  or  conquered  countries,]  being  obtain- 
ed in  the  last  century  either  by  right  of  conquest  and 
driving  out  the  natives,  (with  what  natural  justice  I 
shall  not  at  present  inquire,)  or  by  treaties.  And, 
therefore,  the  common  law  of  England,  as  such,  has 
no  allowance  or  authority  there  ;  they  being  no  part  of 
the  mother  country,  but  distinct,  though  dependent 
dominions." 

^  78.  The  doctrine  of  Mr.  Justice  Blackstone,  may 
well  admit  of  serious  doubt  upon  general  principles. 
But  it  is  manifestly  erroneous,  so  far  as  it  is  applied  to 
the  colonies  and  plantations  composing  our  Union.  In 
the  charters,  under  which  all  these  colonies  were  set- 
tled, with  a  single  exception,  there  is,  an  express  dec- 
laration, that  all  subjects  and  their  children  inhabiting 
therein  shall  be  deemed  natural-born  subjects,  and 
shall  enjoy  all  the  privileges  and  immunities  thereof; 
and  that  the  laws  of  England,  so  far  as  they  are  appH- 
cable,  shall  be  in  force  there ;  and  no  laws  shall  be 
made,  which  are  repugnant  to,  but  as  near  as  may  be 
conveniently,  shall  conform  to  the  laws  of  England. 


J 


CH.  XVI.]  GENERAL    REVIEW.  65 

Now  this  declaration,  even  if  the  crown  previously 
possessed  a  right  to  establish  what  laws  it  pleased  over 
the  territory,  as  a  conquest  from  the  natives,  being  a 
fundamental  rule  of  the  original  setdement  of  the  colo- 
nies, and  before  the  emigrations  thither,  was  conclusive, 
and  could  not  afterwards  be  abrogated  by  the  crown. 
It  was  an  irrevocable  annexation  of  the  colonies  to  the 
mother  country,  as  dependencies  governed  by  the 
same  laws,  and  entitled  to  the  same  rights. 

^  79.  And  so  has  been  the  uniform  doctrine  in 
America  ever  since  the  settlement  of  the  colonies.  The 
universal  principle  (and  the  practice  has  conformed  to 
it)  has  been,  that  the  common  law  is  our  birthright  and 
inheritance,  and  that  our  ancestors  brought  hither  with 
them  upon  their  emigration  all  of  it,  which  was  appHca- 
ble  to  their  situation.  The  whole  structure  of  our 
present  jurisprudence  stands  upon  the  original  founda- 
tions of  the  common  law. 

§  80.  We  thus  see  in  a  very  clear  light  the  mode, 
in  which  the  common  law  was  first  introduced  into  the 
colonies  ;  as  well  as  the  true  reason  of  the  exceptions 
to  it  to  be  found  in  our  colonial  usages  and  laws.  It 
was  not  introduced,  as  of  original  and  universal  obliga- 
tion in  its  utmost  latitude ;  but  the  Umitations  contain- 
ed in  the  bosom  of  the  common  law  itself,  and  indeed 
constituting  a  part  of  the  law  of  nations,  were  affirma- 
tively settled  and  recognised  in  the  respective  charters 
of  settlement.  Thus  hmited  and  defined,  it  has  become 
the  guardian  of  our  political  and  civil  rights ;  it  has 
protected  our  infant  liberties  ;  it  has  watched  over  our 
maturer  growth ;  it  has  expanded  with  our  wants ;  it 
has  nurtured  that  spirit  of  independence,  which  checked 
the  first  approaches  of  arbitrary  power ;  it  has  enabled 
us  to  triumph  in  the  midst  of  difficulties  and  dangers 

Ahr.  9 


M  HISTORY   OF   THE    COLONIES.  [bOOK  I. 

threatening  our  political  existence ;  and  by  the  good- 
ness of  God,  we  are  now  enjoying,  under  its  bold  and 
manly  principles,  the  blessings  of  a  free,  independent, 
and  united  government. 


CH.    XVII.]  GENERAL   REVIEW.  67 


CHAPTER  XVII. 

GENERAL    REVIEW    OF   THE    COLONIES. 

^  81.  In  respect  to  their  interior  polity,  the  colonies 
have  been  very  properly  divided  by  Mr.  Justice  Black - 
stone  into  three  sorts ;  viz.  Provincial,  Proprietary,  and 
Charter  Governments.  First,  Provincial  Establish- 
ments. The  constitutions  of  these  depended  on  the 
respective  commissions  issued  by  the  crown  to  the 
governors,  and  the  instructions,  which  usually  accom- 
panied those  commissions.  These  commissions  were 
usually  in  one  form,  appointing  a  governor  as  the  king's 
representative  or  deputy,  who  was  to  be  governed  by 
the  royal  instructions,  and  styling  him  Captain  General 
and  Governor-in- Chief  over  the  Province,  and  Chan- 
cellor, Vice-Admiral,  and  Ordinary  of  the  same.  The 
crown  also  appointed  a  council,  who,  besides  their  legis- 
lative authority,  were  to  assist  the  governor  in  the  dis- 
charge of  his  official  duties ;  and  power  was  given  him 
to  suspend  them  from  office,  and,  in  case  of  vacancies, 
to  appoint  others,  until  the  pleasure  of  the  crown  should 
be  known.  The  commissions  also  contained  authority 
to  convene  a  general  assembly  of  representatives  of  the 
freeholders  and  planters ;  and  under  this  authority  pro- 
vincial assemblies,  composed  of  the  governor,  the  council, 
and  the  representatives,  were  constituted  ;  (the  council 
being  a  separate  branch  or  upper  house,  and  the  gov- 
ernor having  a  negative  upon  all  their  proceedings,  and 
also  the  right  of  proroguing  and  dissolving  them;)  which 
assemblies  had  the  power  of  making  local  laws  and 
ordinances,  not  repugnant  to  the  laws  of  England,  but 


68  HISTORY    or    THE    COLONIES.  [BOOK  I. 

as  near  as  may  be  agreeable  thereto,  subject  to  the 
ratification  and  disapproval  of  the  crown.  The  govern- 
ors also  had  power,  with  advice  of  council,  to  estabUsh 
courts,  and  to  appoint  judges  and  other  magistrates, 
and  officers  for  the  province  ;  to  pardon  offences,  and 
to  remit  fines  and  forfeitures ;  to  collate  to  churches 
and  benefices  ;  to  levy  military  forces  for  defence ;  and 
to  execute  martial  law  in  time  of  invasion,  war,  and 
rebellion.  Appeals  lay  to  the  king  in  council  from  the 
decisions  of  the  highest  courts  of  judicature  of  the 
province,  as  indeed  they  did  from  all  others  of  the 
colonies.  Under  this  form  of  government  the  provin-. 
ces  of  New-Hampshire,  New-York,  New-Jersey,  Vir- 
ginia, the  Carohnas,  and  Georgia,  were  governed  (as 
w^e  have  seen)  for  a  long  period,  and  some  of  them 
from  an  early  period  after  their  setdement. 

§  82.  Secondly,  Proprietary  Governments.     These 
(as  we  have  seen)  were  granted  out  by  the  crown  to 
individuals,  in  the  nature  of  feudatory  principalities,  with 
all  the  inferior  royalties,  and  subordinate  powers  of 
legislation,  which  formerly  belonged  to  the  owners  of 
counties  palatine.     Yet  still  there  were  these  express 
conditions,  that  the  ends,  for  which  the  grant  was  made, 
should  be   substantially   pursued ;   and   that  nothing 
should  be  done  or  attempted,  which  might  derogate 
from  the  sovereignty  of  the  mother  country.     In  the 
proprietary  government  the  governors  were  appointed 
by  the  proprietaries,  and  legislative  assemblies  were 
assembled  under  their  authority;  and  indeed  all  the 
usual  prerogatives  were  exercised,  which  in  provincial 
governments  belonged  to  the  crown.     Three  otily  ex- 
isted at  the  period  of  the  American  Revolution ;  viz. 
the  proprietary  governments  of  Maryland,  Pennsylvania, 
and  Delaware.     The  former  had  this  peculiarity  in  its 


CH.  XVir.]  GENERAL  REVIEW.  69 

charter,  that  its  laws  were  not  subject  to  the  supervision 
and  control  of  the  crown;  whereas  in  both  the  latter 
such  a  supervision  and  control  were  expressly  or  im- 
pliedly provided  for. 

^  83.   Thirdly,  Charter  Governments.     Mr.  Justice 
Blackstone describes  them,  (1  Comm.  108,)  as  "in  the 
nature  of  civil  corporations  with  the  power  of  making 
by-laws  for  their  own  internal  regulation,  not  contrary 
to  the  laws  of  England;  and   with  such  rights  and 
authorities  as  are  specially  given  them  in  their  several 
charters  of  incorporation.   They  have  a  governor  named 
by  the  king,  (or,  in  some  proprietary  colonies,  by  the 
proprietor,)  who  is  his  representative  or  deputy.    They 
have  courts  of  justice  of  their  own,  from  whose  decis- 
ions an  appeal  Res  to  the  king  and  council  here  in 
England.     Their  general  assembMes,  which  are  their 
house  of  commons,  together  with  their  council  of  state, 
being  their  upper  house,  with  the  concurrence  of  the 
king,  or  his  representative  the  governor,  make  laws 
suited  to  their  own  emergencies."   This  is  by  no  means 
a  just  or  accurate  description  of  the  charter  govern- 
ments.    They  could  not  be  justly  considered,  as  mere 
civil  corporations  of  the  realm,  empowered  to  pass  by- 
laws ;  but  rather  as  great  political  establishments  or 
colonies,  possessing  the  general  powers  of  government, 
and  rights  of  sovereignty,  dependent,  indeed,  and  sub- 
ject to  the  realm  of  England ;  but  still  possessing  with- 
in their  own  territorial  limits  the  general  powers  of 
legislation  and  taxation.     The  only  charter  governments 
existing  at  the  period  of  the  American  Revolution  were 
those  of  Massachusetts,  Rhode-Island,  and  Connecticut. 
The  first  charter  of  Massachusetts  might  be  open  to 
the  objection,  that  it  provided  only  for  a  civil  corpora- 
tion within  the  realm,  and  did  not  justify  the  assumption 


70  HISTORY    OF    THE    COLONIES.         [bOOK  I. 

of  the  extensive  executive,  legislative,  and  judiciaJ 
powers,  which  were  afterwards  exercised  upon  the 
removal  of  that  charter  to  America.  And  a  similar 
objection  might  be  urged  against  the  charter  of  the 
Plymouth  colony.  But  the  charter  of  William  and 
Mary,  in  1691,  was  obviously  upon  a  broader  founda- 
tion, and  was  in  the  strictest  sense  a  charter  for  gener- 
al political  government,  a  constitution  for  a  state,  with 
sovereign  powers  and  prerogatives,  and  not  for  a  mere 
municipality.  By  this  last  charter  the  organization  of 
the  different  departments  of  the  government  was,  in 
some  respects,  similar  to  that  in  the  provincial  govern- 
ments ;  the  governor  was  appointed  by  the  crown;  the 
council  annually  chosen  by  the  General  Assembly;  and 
the  House  of  Representatives  by  the  people.  But  in 
Connecticut  and  Rhode-Island  the  charter  governments 
were  organized  altogether  upon  popular  and  democrat- 
ical  principles;  the  governor,  council,  and  assembly 
being  annually  chosen  by  the  freemen  of  the  colony, 
and  all  other  officers  appointed  by  their  authority.  By 
the  statutes  of  7  &  8  William  3,  (ch.  22,  §  6,)  it  was 
indeed  required,  that  all  governors  appointed  in  charter 
and  proprietary  governments  should  be  approved  of  by 
the  crown,  before  entering  upon  the  duties  of  their  of- 
fice ;  but  this  statute  was,  if  at  all,  ill  observed,  and 
seems  to  have  produced  no  essential  change  in  the 
colonial  policy. 

§  84.  The  circumstances,  in  which  the  colonies 
were  generally  agreed,  notwithstanding  the  diversities 
of  their  organization  into  provincial,  proprietary,  and 
charter  governments,  were  the  following. 

§  85.  (1.)  They  enjoyed  the  rights  and  privileges 
of  British  born  subjects  ;  and  the  benefit  of  the  com- 
mon laws  of  England;  and  all  their  laws  were  required 


CH.  XVII.]  GENERAL  REVIEW.  71 

to  be  not  repugnant  unto,  but,  as  near  as  might  be, 
agreeable  to  the  laws  and  statutes  of  England.  This, 
as  we  have  seen,  was  a  limitation  upon  the  legislative 
power  contained  in  an  express  clause  of  all  the  char- 
ters ;  and  could  not  be  transcended  without  a  clear 
breach  of  their  fundamental  conditions.  A  very  liberal 
exposition  of  this  clause  seems,  however,  always  to 
have  prevailed,  and  to  have  been  acquiesced  in,  if  not 
adopted  by  the  crow^n.  Practically  speaking,  it  seems 
to  have  been  left  to  the  judicial  tribunals  in  the  colonies 
to  ascertain,  what  part  of  the  common  law  was  applica- 
ble to  the  situation  of  the  colonies ;  and  of  course,  from 
a  difference  of  interpretation,  the  common  law,  as  actu- 
ally administered,  was  not  in  any  two  of  the  colonies 
exactly  the  same.  The  general  foundation  of  the  local 
jurisprudence  was  confessedly  composed  of  the  same 
materials ;  but  in  the  actual  superstructure  they  were 
variously  combined,  and  modified,  so  as  to  present 
neither  a  general  symmetry  of  design,  nor  an  unity  of 
execution. 

§  86.  In  regard  to  the  legislative  power,  there  was 
a  still  greater  latitude  allowed  ;  for  notw^ithstanding  the 
cautious  reference  in  the  charters  to  the  laws  of  Eng- 
land, the  assemblies  actually  exercised  the  authority  to 
abrogate  every  part  of  the  common  law,  except  that, 
which  united  the  colonies  to  the  parent  state  by  the 
general  ties  of  allegiance  and  dependency ;  and  every 
part  of  the  statute  law,  except  those  acts  of  Parliament, 
which  expressly  prescribed  rules  for  the  colonies,  and 
necessarily  bound  them,  as  integral  parts  of  the  empire, 
in  a  general  system,  formed  for  all,  and  for  the  interest 
of  all.  To  guard  this  superintending  authority  with 
more  effect,  it  was  enacted  by  Parliament  in  7  &  8 
William  3,  (ch.  22,)  « that  all  laws,  by-laws,  usages,  and 


72  HISTORY    OF    THE    COLONIES.  [bOOK  I. 

customs,  which  should  be  in  practice  in  any  of  the  plan- 
tations, repugnant  to  any  law  made,  or  to  be  made  in 
this  kingdom  relative  to  the  -said  plantations,  shall  be 
utterly  void  and  of  none  effect." 

§  87.  It  was  under  the  consciousness  of  the  full 
possession  of  the  rights,  liberties,  and  immunities  of 
British  subjects,  that  the  colonists  in  almost  all  the  early 
legislation  of  their  respective  assemblies  insisted  upon 
a  declaratory  act,  acknowledging  and  confirming  them. 
And  for  the  most  part  they  thus  succeed  in  obtaining 
a  real  and  effective  magna  charta  of  their  Hberties.  The 
trial  by  jury  in  all  cases,  civil  and  criminal,  was  as  firm- 
ly, and  as  universally  established  in  the  colonies,  as  in 
the  mother  country. 

§  88.  (2.)  In  all  the  colonies  local  legislatures  were 
established,  one  branch  of  which  consisted  of  represen- 
tatives of  the  people  freely  chosen,  to  represent  and 
defend  their  interests,  and  possessing  a  negative  upon 
all  laws.  We  have  seen,  that  in  the  original  structure 
of  the  charters  of  the  early  colonies,  no  provision  was 
made  for  such  a  legislative  body.  But  accustomed  as 
J  the  colonists  had  been  to  possess  the  rights  and  privi- 
leges of  Englishmen,  and  valuing  as  they  did,  above  all 
others,  the  right  of  representation  in  Parliament,  as  the 
only  real  security  for  their  poUtical  and  civil  liberties, 
it  was  easy  to  foresee,  that  they  would  not  long  endure 
the  exercise  of  any  arbitrary  pqv/er;  and  that  they 
would  insist  upon  some  share  in  framing  the  laws,  by 
which  they  were  to  be  governed.  We  find  accordingly, 
that  at  an  early  period  [1619]  a  house  of  burgesses  was 
forced  upon  the  then  proprietors  of  Virginia.  In  Mas- 
sachusetts, Connecticut,  New-Hampshire,  and  Rhode- 
Island,  the  same  course  was  pursued.  And  Mr.  Hutch- 
inson has  correctly  observed,  that  all  the  colonies  be- 


CH.    XVII.]  GENERAL  REVIEW.  73 

fore  the  reign  of  Charles  the  Second,  (Maryland  alone 
excepted,  whose  charter  contained  an  express  provision 
on  the  subject,)  settled  a  model  of  government  for 
themselves,  in  which  the  people  had  a  voice,  and  rep- 
resentation in  framing  the  laws,  and  in  assenting  to 
burthens  to  be  imposed  upon  themselves.  After  the 
restoration,  there  was  no  instance  of  a  colony  without  a 
representation  of  the  people,  nor  any  attempt  to  deprive 
the  colonies  of  this  privilege,  except  during  the  brief 
and  arbitrary  reign  of  King  James  the  Second. 

^  89.  (5.)  All  the  colonies  considered  themselves, 
not  as  parcel  of  the  realm  of  Great  Britain,  but  as  de- 
pendencies of  the  British  crown,  and  owing  allegiance 
thereto,  the  king  being  their  supreme  and  sovereign 
lord.  In  virtue  of  its  general  superintendency  the 
crown  constantly  claimed,  and  exercised  the  right  of 
entertaining  appeals  from  the  courts  of  the  last  resort 
in  the  colonies ;  and  these  appeals  were  heard  and 
finally  adjudged  by  the  king  in  council.  This  right  of 
appeal  was  secured  by  express  reservation  in  most  of 
the  colonial  charters.  It  was  expressly  provided  for 
by  an  early  provincial  law  in  New-Hampshire,  when 
the  matter  in  difference  exceeded  the  true  value  or 
sum  of  c£300  sterling.  So,  a  like  colonial  law  of 
Rhode-Island  was  enacted  by  its  local  legislature  in 
1719.  It  was  treated  by  the  crown,  as  an  inherent 
right  of  the  subject,  independent  of  any  such  reserva- 
tion. And  so  in  divers  cases  it  was  held  by  the  courts 
of  England.  The  reasons  given  for  the  opinion,  that 
writs  of  error  [and  appeals]  he  to  all  the  dominions 
belonging  to  England  upon  the  ultimate  judgments  giv- 
en there,  are,  (1.)  That,  otherwise,  the  law  appointed, 
or  permitted  to  such  inferior  dominion  might  be  con- 
siderably changed  without  the  assent  of  the  superior 

Abr.  10 


74  HISTORY  OF  THE  COLONIES.  [bOOK  I. 

dominion ;  (2.)  Judgments  might  be  given  to  the  dis- 
advantage or  lessening  of  the  superiority,  or  to  make 
the  superiority  of  the  king  only,  and  not  of  the  crown 
of  England ;  and  (3.)  That  the  practice  has  been  ac- 
cordingly. 

§  90.  (6.)  Though  the  colonies  had  a  common  origin, 
and  owed  a  common  allegiance,  and  the  inhabitants  of 
each  were  British  subjects,  they  had  no  direct  political 
connexion  with  each  other.  Each  was  independent  of 
all  the  others  ;  each,  in  a  limited  sense,  was  sovereign 
within  its  own  territory.  There  was  neither  alliance, 
nor  confederacy  between  them.  The  assembly  of  one 
province  could  not  make  laws  for  another ;  nor  confer 
privileges,  which  were  to  be  enjoyed  or  exercised  in 
another,  farther  than  they  could  be  in  any  independent 
foreign  state.  As  colonies,  they  were  also  excluded 
from  all  connexion  with  foreign  states.  They  were 
known  only  as  dependencies ;  and  they  followed  the 
fate  of  the  parent  country  both  in  peace  and  war,  with- 
out having  assigned  to  them,  in  the  intercourse  or  di- 
plomacy of  nations,  any  distinct  or  independent  ex- 
istence. They  did  not  possess  the  power  of  forming 
any  league  or  treaty  among  themselves,  which  should 
acquire  an  obligatory  force  without  the  assent  of  the 
parent  state.  And  though  their  mutual  wants  and  ne- 
cessities often  induced  them  to  associate  for  common 
purposes  of  defence,  these  confederacies  were  of  a 
casual  and  temporary  nature,  and  were  allowed  as  an 
indulgence,  rather  thali  as  a  right.  They  made  several 
efforts  to  procure  the  estabhshment  of  some  general 
superintending  government  over  them  all;  but  their 
own  differences  of  opinion,  as  well  as  the  jealousy  of 
the  crown,  made  these  efforts  abortive.  These  efforts, 
however,  prepared  their  minds  for  the  gradual  recon- 


CH.  XVII.] 


GENERAL  REVIEW. 


75 


ciliation  of  their  local  interests,  and  for  the  gradual  de- 
velopement  of  the  principles,  upon  which  a  union  ought 
to  rest,  rather  than  brought  on  an  immediate  sense  of 
the  necessity,  or  the  blessings  of  such  a  general  gov- 
ernment. 

^91.  But  although  the  colonies  were  independent 
of  each  other  in  respect  to  their  domestic  concerns, 
they  were  not  wholly  alien  to  each  other.  On  the  con- 
trary, they  were  fellow  subjects,  and  for  many  purposes 
one  people.  Every  colonist  had  a  right  to  inhabit,  if  he 
pleased,  in  any  other  colony;  and,  as  a  British  subject, 
he  was  capable  of  inheriting  lands  by  descent  in  every 
other  colony.  The  commercial  intercourse  of  the  colo- 
nies, too,  was  regulated  by  the  general  laws  of  the  Brit- 
ish empire ;  and  could  not  be  restrained,  or  obstructed 
by  colonial  legislation.  The  remarks  of  Mr.  Chief  Justice 
Jay  on  this  subject  are  equally  just  and  striking.  "  All 
the  people  of  this  country  were  then  subjects  of  the  king 
of  Great  Britain,  and  owed  allegiance  to  him  ;  and  all 
the  civil  authority  then  existing,  or  exercised  here,  flow- 
ed from  the  head  of  the  British  empire.  They  were, 
in  a  strict  sense,  felloiv  subjects,  and  in  a  variety  of  re- 
spects one  people.  When  the  Revolution  commenced,  the 
patriots  did  not  assert,  that  only  the  same  affinity  and 
social  connexion  subsisted  between  the  people  of  the 
colonies,  which  subsisted  between  the  people  of  Gaul, 
Britain,  and  Spain,  while  Roman  provinces,  to  wit,  only 
that  affinity  and  social  connexion,  which  result  from  the 
mere  circumstance  of  being  governed  by  the  same 
prince."  Different  ideas  prevailed,  and  gave  occasion 
to  the  Congress  of  1774  and  1775. 

§  92.  In  respect  to  the  political  relations  of  the 
colonies  with  the  parent  country,  it  is  not  easy  to  state 
the  exact  limits  of  the  dependency,  which  was  admitted, 


76  HISTORY  OF  THE  COLONIES  [bOOK  I. 

and  the  extent  of  sovereignty,  which  might  be  lawfully 
exercised  over  them,  either  by  the  crown,  or  by  parlia- 
ment. In  regard  to  the  crown,  all  of  the  colonies  ad- 
mitted, that  they  owed  allegiance  to  the  crown,  as  their 
sovereign  liege  lord,  though  the  nature  of  the  powers, 
which  he  might  exercise,  as  sovereign,  were  still  unde- 
fined. 

§  93.  In  the  silence  of  express  declarations  we 
may  resort  to  the  doctrines  maintained  by  the  crown- 
writers,  as  furnishing,  if  not  an  exact,  at  least  a  compre- 
hensive view  of  the  claims  of  the  royal  prerogative  over 
the  colonial  establishments.  They  considered  it  not 
necessary  to  maintain,  that  all  the  royal  prerogatives, 
exercisable  in  England,  were  of  course  exercisable  in 
the  colonies ;  but  only  such  fundamental  rights  and  prin- 
ciples, as  constituted  the  basis  of  the  throne  and  its 
authority,  and  without  which  the  king  would  cease  to 
be  sovereign  in  all  his  dominions.  Hence  the  attributes 
of  sovereignty,  perfection,  perpetuity,  and  irresponsi- 
bility, which  were  inherent  in  the  political  capacity  of 
the  king,  belonged  to  him  in  all  the  territories  subject  to 
the  crown,  whatever  were  the  nature  of  their  laws,  and 
government  in  other  respects.  Every  where  he  was 
the  head  of  the  church,  and  the  fountain  of  justice ; 
every  where  he  was  entided  to  a  share  in  the  legisla- 
tion, (except  where  he  had  expressly  renounced  it ;) 
every  where  he  was  generalissimo  of  all  forces,  and 
entitled  to  make  peace  or  war.  But  minor  prerogatives 
might  be  yielded,  where  they  were  inconsistent  with 
the  laws  or  usages  of  the  place,  or  were  inapplicable  to 
the  condition  of  the  people.  In  every  question,  that 
respected  the  royal  prerogatives  in  the  colonies,  where 
they  were  not  of  a  strictly  fundamental  nature,  the  first 
thing  to  be  considered  was,  whether  the  charter  of  the 


CH.  XVII.]  GENERAL  REVIEW.  77 

particular  colony  contained  any  express  provision  on 
the  subject.  If  it  did,  that  was  the  guide.  If  it  was 
silent,  then  the  royal  prerogatives  were  in  the  colony 
precisely  the  same,  as  in  the  parent  country  ;  for  in  such 
cases  the  common  law  of  England  was  the  common  law 
of  the  colonies  for  such  purposes.  Hence,  if  the  colo- 
nial charter  contained  no  peculiar  grant  to  the  contrary, 
the  king  might  erect  courts  of  justice  and  exchequer 
therein ;  and  the  colonial  judicatories,  in  point  of  law, 
were  deemed  to  emanate  from  the  crown,  under  the 
modifications  made  by  the  colonial  assembhes  under 
their  charters.  The  king  also  might  extend  the  privi- 
lege of  sending  representatives  to  new  towns  in  the 
colonial  assemblies.  He  might  control,  and  enter  a  nolle 
prosequi  in  criminal  prosecutions,  and  pardon  crimes, 
and  release  forfeitures.  He  might  present  to  vacant 
benefices;  and  he  was  entitled  to  royal  mines,  treasure- 
trove,  escheats,  and  forfeitures.  No  colonial  assemblies 
had  a  right  to  enact  laws,  except  with  the  assent  of  the 
crown  by  charter,  or  commission,  or  otherwise ;  and  if 
they  exceeded  the  authority  prescribed  by  the  crown, 
their  acts  were  void.  The  king  might  alter  the  consti- 
tution and  form  of  the  government  of  the  colony,  where 
there  was  no  charter,  or  other  confirmatory  act  by  the 
colonial  assembly  with  the  assent  of  the  crown  ;  and  it 
rested  merely  on  the  instructions  and  commissions  given, 
from  time  to  time,  by  the  crown  to  its  governors.  The 
king  had  power  also  to  vest  in  the  royal  governors  in, 
the  colonies,  from  time  to  time,  such  of  his  prerogatives, 
as  he  should  please ;  such  as  the  power  to  prorogue, 
adjourn,  and  dissolve  the  colonial  assembhes ;  to  con- 
firm acts  and  laws  ;  to  pardon  offences  ;  to  act  as  cap- 
tain general  of  the  public  forces ;  to  appoint  public  offi- 
cers ;  to  act  as  chancellor  and  supreme  ordinary ;  to 


78  HISTORY  OF  THE  COLONIES.  [bOOK  I. 

sit  in  the  highest  court  of  appeals  and  errors ;  to 
exercise  the  duties  of  vice-admiral,  and  to  grant  com- 
missions to  privateers.  These  last  and  some  other 
of  the  prerogatives  of  the  king,  were  commonly  exer- 
cised by  the  royal  governors  without  objection. 

§  94.  The  colonial  assembUes  were  not  considered 
as  standing  on  the  same  footing,  as  parliament,  in  re- 
spect to  rights,  powers,  and  privileges ;  but  as  deriving 
all  their  energies  from  the  crown,  and  limited  by  the 
respective  charters,  or  other  confirmatory  acts  of  the 
crown,  in  all  their  proceedings.  The  king  might,  in 
respect  to  a  colonial  assembly,  assent  to  an  act  of  as- 
sembly, before  it  met,  or  ratify  it,  or  dissent  from  it,  after 
the  session  was  closed.  He  might  accept  a  surrender 
of  a  colonial  charter,  subject  to  the  rights  of  third  per- 
sons previously  acquired ;  and  give  the  colony  a  new 
charter,  or  otherwise  institute  therein  a  new  form  of 
government.  And  it  has  been  even  contended,  that  the 
king  might,  in  cases  of  extraordinary  necessity  or  emer- 
gency, take  away  a  charter,  where  the  defence  or  pro- 
tection of  the  inhabitants  required  it,  leaving  them  in 
possession  of  their  civil  rights. 

§  95.  Such  are  some  of  the  royal  prerogatives, 
which  were  supposed  to  exist  by  the  crown-writers  in 
the  colonial  establishments,  when  not  restrained  by  any 
positive  charter  or  bill  of  rights.  Of  these,  many  were 
undisputed ;  but  others  were  resisted  with  pertinacity 
and  effect  in  the  colonial  assembhes. 

^  96.  In  regard  to  the  authority  of  parliament  to 
enact  laws,  which  should  be  binding  upon  them,  there 
was  quite  as  much  obscurity,  and  still  more  jealousy 
spreading  over  the  whole  subject.  The  government 
of  Great  Britain  always  maintained  the  doctrine,  that  the 
parliament  had  authority  to  bind  the  colonies  in  all  cases 


CH.  XVII.]  GENERAL  REVIEW.  79 

whatsoever.  No  acts  of  parliament,  however,  were 
understood  to  bind  the  colonies,  unless  expressly  named 
therein.  But  in  America,  at  different  times  and  in 
different  colonies,  different  opinions  were  entertained 
on  the  subject.  In  fact  it  seemed  to  be  the  policy  of 
the  colonies,  as  much  as  possible,  to  withdraw  them- 
selves from  any  acknowledgment  of  such  authority,  ex- 
cept so  far  as  their  necessities,  from  time  to  time,  com- 
pelled them  to  acquiesce  in  the  parliamentary  measures 
expressly  extending  to  them.  We  have  already  seen, 
that  they  resisted  the  imposition  of  taxes  upon  them, 
without  the  consent  of  their  local  legislatures,  from  a 
very  early  period. 

§  97.  But  it  was  by  no  means  an  uncommon  opin- 
ion in  some  of  the  colonies,  especially  in  the  proprietary 
and  charter  governments,  that  no  act  of  parliament 
whatsoever  could  bind  them  without  their  own  consent. 
An  extreme  reluctance  was  shown  by  Massachusetts  to 
any  parliamentary  interference  as  early  as  1640;  and 
the  famous  navigation  acts  of  1651  and  1660  were  per- 
petually evaded,  even  when  their  authority  was  no 
longer  denied,  throughout  the  whole  of  New-England. 
Massachusetts,  in  1679,  in  an  address  to  the  crown, 
declared,  that  she  "apprehended  them  to  be  an  invasion 
of  the  rights,  liberties,  and  properties  of  the  subjects  of 
his  majesty  in  the  colony,  they  not  being  represented 
in  parliament ;  and,  according  to  the  usual  sayings  of 
the  learned  in  the  law,  the  laws  of  England  were  bound- 
ed within  the  four  seas,  and  did  not  reach  America." 
However,  Massachusetts,  as  well  as  the  other  New- 
England  colonies,  finally  acquiesced  in  the  authority  of 
parliament  to  regulate  trade  and  commerce;  but  denied 
it  in  regard  to  taxation  and  internal  regulation  of  the 
colonies.    As  late  as  1757,  the  general  court  of  Mas- 


80  HISTdRY  OF  THE  COLONIES.  [boOK  I. 

sachusetts  admitted  the  constitutional  authority  of  par- 
liament in  the  following  words: — "The  authority  of  all 
acts  of  parliament,  which  concern  the  colonies,  and  ex- 
tend to  them,  is  ever  acknowledged  in  all  the  courts  of 
law,  and  made  the  rule  of  all  judicial  proceedings  in  the 
province.  There  is  not  a  member  of  the  general  court, 
and  we  know  no  inhabitant  within  the  bounds  of  the 
government,  that  ever  questioned  this  authority."  And 
in  another  address  in  1761,  they  declared,  that  "every 
act  we  make,  repugnant  to  an  act  of  parliament  extend- 
ing to  the  plantations,  is  ipso  facto  null  and  void.  And 
at  a  later  period,  in  1768,  in  a  circular  address  to  the 
other  colonies,  they  admitted,  "that  his  majesty's  high 
court  of  Parliament  is  the  supreme  legislative  power  over 
the  whole  empire;"  contending,  however,  that  as  Brit- 
ish subjects  they  could  not  be  taxed  without  their  own 
consent. 

^  98.  "  In  the  middle  and  southern  provinces,"  (we 
are  informed  by  a  most  respectable  historian,)  "no 
question  respecting  the  supremacy  of  parliament  in 
matters  of  general  legislation  existed.  The  authority  of 
such  acts  of  internal  regulation,  as  w^ere  made  for  Amer- 
ica, as  well  as  those  for  the  regulation  of  commerce, 
even  by  the  imposition  of  duties,  provided  these  duties 
were  imposed  for  the  purpose  of  regulation,  had  been  at 
all  times  admitted.  But  these  colonies,  however  they 
might  acknowledge  the  supremacy  of  parliament  in 
other  respects,  denied  the  right  of  that  body  to  tax  them 
internally."  If  there  were  any  exceptions  to  the  gene- 
ral accuracy  of  this  statement,  they  seem  to  have  been 
too  few  and  fugitive  to  impair  the  general  result.  In 
the  charter  of  Pennsylvania,  an  express  reservation  was 
made  of  the  power  of  taxation  by  an  act  of  parliament. 


CH.  XVn.]  GENERAL  REVIEW.  81 

though  this  was  argued  not  to  be  a  sufficient  foundation 
for  the  exercise  of  it. 

§  99.  Perhaps  the  best  general  summary  of  the 
rights  and  liberties  asserted  by  all  the  colonies  is  con- 
tained in  the  celebrated  declaration  drawn  up  by  the 
Congress  of  the  Nine  Colonies,  assembled  at  New- 
York,  in  October,  1765.  That  declaration  asserted, 
that  the  colonists  "owe  the  same  allegiance  to  the  crown 
of  Great  Britain,  that  is  owing  from  his  subjects  born 
within  the  realm,  and  all  due  subordination  to  that  au- 
gust body,  the  parliament  of  Great  Britain."  That  the 
colonists  "are  entided  to  all  the  inherent  rights  and  lib- 
erdes  of  his  [the  king's]  natural  born  subjects  within 
the  kingdom  of  Great  Britain."  "  That  it  is  inseparably 
essendal  to  the  freedom  of  a  people,  and  the  undoubted 
right  of  Englishmen,  that  no  taxes  be  imposed  on  them, 
but  with  their  own  consent,  given  personally,  or  by 
their  representatives."  That  the  people  of  the  "  colo- 
nies are  not,  and  from  their  local  circumstances  cannot 
be  represented  in  the  house  of  commons  of  Great  Brit- 
ain. That  the  only  representatives  of  these  colonies 
are  persons  chosen  therein  by  themselves ;  and  that  no 
taxes  ever  have  been,  or  can  be,  constitutionally  im- 
posed upon  them,  but  by  their  respective  legislatures. 
That  all  supplies  of  the  crown  being  free  gifts  from  the 
people,  it  is  unreasonable  and  inconsistent  with  the 
principles  and  spirit  of  the  British  constitution  for  the 
people  of  Great  Britain  to  grant  to  his  majesty  the 
property  of  the  colonies.  And  that  the  trial  by  jury  is 
the  inherent  and  invaluable  right  of  every  British  sub- 
ject in  these  colonies." 

^  100.  But  after  the  passage  of  the  stamp  act,  in 
1765,  many  of  the  colonies  began  to  examine  this  sub- 
ject with  more  care  and  to  entertain  very  different  opin- 

Abr.  11 


82  HISTORY  OF  THE  COLONIES.  [bOOK  I. 

ions,  as  to  parliamentary  authority.  The  doctrines  main- 
tained in  debate  in  parliament,  as  well  as  the  alarming 
extent  to  which  a  practical  application  of  those  doc- 
trines might  lead,  in  drying  up  the  resources,  and  pros- 
trating the  strength  and  prosperity  of  the  colonies,  drove 
them  to  a  more  close  and  narrow  survey  of  the  founda- 
tion of  parliamentary  supremacy.  Doubts  were  soon 
infused  into  their  minds  ;  and  from  doubts  they  passed 
by  an  easy  transition  to  a  denial,  first  of  the  power  of 
taxation,  and  next  of  all  authority  whatever  to  bind  them 
by  its  laws.  One  of  the  most  distinguished  of  our 
writers  during  the  contest  admits,  that  he  entered  upon 
the  inquiry  "with  a  view  and  expectation  of  being 
able  to  trace  some  constitutional  line  between  those 
cases,  in  which  we  ought,  and  those,  in  which  we  ought 
not  to  acknowledge  the  power  of  parliament  over  us. 
In  the  prosecution  of  his  inquiries  he  became  fully  con- 
vinced, that  such  a  Hue  does  not  exist ;  and  that  there 
can  be  no  medium  between  acknowledging  and  deny- 
ing that  power  in  all  cases." 

§  101.  If  other  colonies  did  not  immediately  arrive  at  the 
same  conclusion,  it  was  easy  to  foresee,  that  the  strug- 
gle would  ultimately  be  maintained  upon  the  general 
ground ;  and  that  a  common  interest  and  a  common 
desire  of  security,  if  not  of  independence,  would  gradu- 
ally bring  all  the  colonies  to  feel  the  absolute  necessity 
of  adhering  to  it,  as  their  truest  and  safest  defence. 
In  1773,  Massachusetts  found  no  difficulty  in  contend- 
ing in  the  broadest  terms  for  an  unlimited  independence 
of  parliament;  and  in  a  bold  and  decided  tone  denied 
all  its  power  of  legislation  over  them.  A  distinction  was 
taken  between  subjection  to  parliament,  and  allegi- 
ance to  the  crown.  The  latter  was  admitted  ;  but  the 
former  w^as  resolutely  opposed.    It  is  remarkable,  that 


CH.  XVII.]  GENERAL    REVIEW.  83 

the  Declaration  of  Independence,  which  sets  [forth  our 
grievances  in  such  warm  and  glowing  colors,  does  not 
once  mention  parliament,  or  allude  to  our  connexion 
with  it ;  but  treats  the  acts  of  oppression  therein  referred 
to,  as  acts  of  the  king,  in  combination  "  with  others," 
for  the  overthrow  of  our  liberties. 

^102.  The  stamp  act  was  repealed;  but  within  a 
few  years  afterwards  duties  of  another  sort  were  laid, 
the  object  of  which  was  to  raise  a  revenue  from  impor- 
tations into  the  colonies.  These  of  course  became 
as  offensive  to  the  colonies  as  the  prior  attempt  at 
internal  taxation ;  and  were  resisted  upon  the  same 
grounds  of  unconstitutionality.  It  soon  became  obvi-  ^ 
ous,  that  the  great  struggle  in  respect  to  colonial  and 
parliamentary  rights  could  scarcely  be  decided  other- 
wise, than  by  an  appeal  to  arms.  Great  Britain  was 
resolutely  bent  upon  enforcing  her  claims  by  an  open 
exercise  of  military  power ;  and  on  the  other  hand, 
America  scarcely  saw  any  other  choice  left  to  her, 
but  unconditional  submission,  or  bold  and  unmeasured 
resistance. 


BOOK  II. 

HISTORY  OF  THE  REVOLUTION  AND  OF  THE 
CONFEDERATION. 


CHAPTER  I. 


THE    REVOLUTION. 


§  103.  We  are  next  to  proceed  to  an  historical  re- 
view of  the  origin  of  that  union  of  the  colonies,  which 
led  to  the  declaration  of  independence ;  of  the  effects 
of  that  event,  and  of  the  subsequent  war  upon  the  po- 
litical character  and  rights  of  the  colonies  ;  of  the  form- 
ation and  adoption  of  the  articles  of  confederation ;  of 
the  sovereign  powers  antecedently  exercised  by  the 
continental  congress ;  of  the  causes  of  the  decline  and 
fall  of  the  confederation  ;  and  finally,  of  the  establish- 
ment of  the  present  constitution  of  the  United  States. 
^  104.    No  redress  of  grievances  having  followed 
upon  the  many  appeals  made  to  the  king,  and  to  parlia- 
ment, by  and  in  behalf  of  the  colonies,  either  conjointly 
or  separately,  it  became  obvious  to  them,  that  a  closer 
union  and  co-operation  were  necessary  to  vindicate 
their  rights,  and  protect  their  liberties.     If  a  resort  to 
arms  should  be  indispensable,  it  was  impossible  to  hopQ 


I 


CH.  I.]  HISTORY  OF  THE  REVOLUTION.  85 

for  success,  but  in  united  efforts.  If  peaceable  redress 
was  to  be  sought,  it  was  as  clear,  that  the  voice  of  the 
colonies  must  be  heard,  and  their  power  felt  in  a  na- 
tional organization.  In  1774  Massachusetts  recom- 
mended the  assembling  of  a  continental  congress  to  de- 
liberate upon  the  state  of  public  affairs ;  and  according 
to  her  recommendation,  delegates  were  appointed  by 
the  colonies  for  a  congress,  to  be  held  in  Philadelphia 
in  the  autumn  of  the  same  year.  In  some  of  the  legis- 
latures of  the  colonies,  which  were  then  in  session,  del- 
egates were  appointed  by  the  popular,  or  representa- 
tive branch ;  and  in  other  cases  they  were  appointed 
by  conventions  of  the  people  in  the  colonies.  The  con- 
gress of  delegates  (calling  themselves  in  their  more 
formal  acts  "  the  delegates  appointed  by  the  good  people 
of  these  colonies  ")  assembled  on  the  4th  of  September, 
1774  ;  and  having  chosen  officers,  they  adopted  cer- 
tain fundamental  rules  for  their  proceedings. 

^  105.  Thus  was  organized  under  the  auspices,  and 
with  the  consent  of  the  people,  acting  directly  in  their 
primary,  sovereign  capacity,  and  without  the  interven- 
tion of  the  functionaries,  to  whom  the  ordinary  powers 
of  government  were  delegated  in  the  colonies,  the  first 
general  or  national  government,  which  has  been  very 
aptly  called  "  the  revolutionary  government,"  since  in 
its  origin  and  progress  it  was  wholly  conducted  upon 
revolutionary  principles.  The  congress  thus  assembled, 
exercised  de  facto  and  de  jure  a  sovereign  authority  ; 
not  as  the  delegated  agents  of  the  governments  de 
facto  of  the  colonies,  but  in  virtue  of  original  powers 
derived  from  the  people.  The  revolutionary  govern- 
ment, thus  formed,  terminated  only,  when  it  was  regu- 
larly superceded  by  the  confederated  government  un- 
der the  articles  finally  ratified,  as  we  shall  hereafter  see, 
in  1781. 


86  HISTORY  OF  THE  REVOLUTION.  [bOOK  II. 

§  106.  The  first  and  most  important  of  their  acts 
was  a  declaration,  that  in  determining  questions  in  this 
congress,  each  colony  or  province  should  have  one  vote ; 
and  this  became  the  estabhshed  course  during  the  rev- 
olution. They  adopted  a  declaration  of  rights,  not  dif- 
fering in  substance  from  that  of  the  congress  of  1765, 
and  affirming,  that  the  respective  colonies  are  entided 
to  the  common  law^  of  England  and  the  benefit  of  such 
English  statutes,  as  existed  at  the  time  of  their  coloni- 
zation, and  v^hich  they  have  by  experience  respec- 
tively found  to  be  applicable  to  their  local  and  other 
circumstances.  They  also  adopted  addresses  to  the 
people  of  England,  to  the  neighbouring  British  colo- 
nies, and  to  the  king,  explaining  their  grievances,  and 
requesdng  aid  and  redress. 

§  107.  In  May,  1775,  a  second  congress  of  dele- 
gates met  from  all  the  states.  These  delegates  were 
chosen,  as  the  preceding  had  been,  partly  by  the  pop- 
ular branch  of  the  state  legislatures,  when  in  session  ; 
but  principally  by  conventions  of  the  people  in  the 
various  states.  In  a  few  instances  the  choice  by  the 
legislative  body  was  confirmed  by  that  of  a  convention, 
and  e  converso.  They  autliorized  the  raising  of  conti- 
nental troops,  and  appointed  General  Washington  com- 
mander in  chief,  to  whom  they  gave  a  commission  in 
the  name  of  the  delegates  of  the  united  colonies.  They 
had  previously  authorized  certain  military  measures,  and 
especially  the  arming  of  the  militia  of  New-York,  and 
the  occupation  of  Crown  Point  and  Ticonderoga.  They 
authorized  the  emission  of  two  millions  of  dollars  in 
bills  of  credit,  pledging  the  colonies  to  the  redemption 
thereof.  They  framed  rules  for  the  government  pf  the 
army.  They  published  a  solemn  declaration  of  the 
causes  of  their  taking  up  arms,  an  address  to  the  king, 


CH.  I.]  HISTORY  OF  THE  REVOLUTION.  87 

entreating  a  change  of  measures,  and  an  address  to  the 
people  of  Great  Britain,  requesting  their  aid,  and  ad- 
monishing them  of  the  threatening  evils  of  a  separation. 
They  erected  a  general  post-office,  and  organized  the 
department  for  all  the  colonies.  They  apportioned  the 
quota,  that  each  colony  should  pay  of  the  bills  emitted 
by  congress. 

§  108.  At  a  subsequent  adjournment,  they  author- 
ized the  equipment  of  armed  vessels  to  intercept  sup- 
plies to  the  British,  and  the  organization  of  a  marine 
corps.  They  authorized  the  grant  of  commissions  to 
capture  armed  vessels  and  transports  in  the  British 
service ;  and  recommended  the  creation  of  prize  courts 
in  each  colony,  reserving  a  right  of  appeal  to  congress. 
They  adopted  rules  for  the  regulation  of  the  navy,  and 
for  the  division  of  prizes  and  prize  money.  They  de- 
nounced, as  enemies,  all,  who  should  obstruct  or  dis- 
courage the  circulation  of  bills  of  credit.  They  author- 
ized further  emissions  of  bills  of  credit,  and  created  two 
military  departments  for  the  middle  and  southern  colo- 
nies. They  authorized  general  reprisals,  and  the 
equipment  of  private  armed  vessels  against  British  ves- 
sels and  property.  They  organized  a  general  treasury 
department.  They  authorized  the  exportation  and 
importation  of  all  goods  to  and  from  foreign  countries, 
not  subject  to  Great  Britain,  with  certain  exceptions  ; 
and  prohibited  the  importation  of  slaves  ;  and  declared 
a  forfeiture  of  all  prohibited  goods.  They  recommend- 
ed to  the  respective  assemblies  and  conventions  of  the 
colonies,  where  no  government,  sufficient  to  the  exi- 
gencies, had  been  established,  to  adopt  such  govern- 
ment, as  in  the  opinion  of  the  representatives  should 
best  conduce  to  the  happiness  and  safety  of  their  con- 
stituents in  particular,  and  America  in  general,  and 


88  HISTORY  OF  THE  RE  VOLUTIOJf.       [bOOK  II. 

adopted  a  preamble,  which  stated,  "  that  the  exercise 
of  every  kind  of  authority  under  the  crown  of  Great 
Britain  should  be  totally  suppressed." 

§  109.  These  measures,  all  of  which  progressively 
pointed  to  a  separation  from  the  mother  country,  and 
evinced  a  determination  to  maintain,  at  every  hazard, 
the  liberties  of  the  colonies,  were  soon  followed  by  more 
decisive  steps.  On  the  7th  of  June,  1776,  certain 
resolutions  respecting  independency  were  moved, 
which  were  referred  to  a  committee  of  the  whole.  On 
the  10th  of  June  it  was  resolved,  that  a  committee  be 
appointed  to  prepare  a  declaration,  "  that  these  united 
colonies  are,  and  of  right  ought  to  be,  free  and  inde- 
pendent states ;  that  they  are  absolved  from  all  alle- 
giance to  the  British  crown;  and  that  all  political  con- 
nexion between  them  and  the  state  of  Great  Britain  is, 
and  ought  to*  be,  dissolved."  On  the  11th  of  June  a 
committee  was  appointed  to  prepare  and  digest  the 
form  of  a  confederation  to  be  entered  into  between  the 
colonies,  and  also  a  committee  to  prepare  a  plan  of 
treaties  to  be  proposed  to  foreign  powers.  On  the 
28th  of  June  the  committee  appointed  to  prepare  a  De- 
claration of  Independence  brought  in  a  draft.  On  the 
2d  of  July,  congi%ss  adopted  the  resolution  for  Inde- 
pendence ;  and  on  the  4th  of  July  they  adopted  the 
Declaration  of  Independence ;  and  thereby  solemnly 
published  and  declared,  "  That  these  united  colonies 
are,  and  of  right  ought  to  be,  free  and  independent 
states ;  that  they  are  absolved  from  all  allegiance  to  the 
British  crown;  and  that  all  political  connexion  between 
them  and  the  state  of  Great  Britain  island  ought  to  be, 
totally  dissolved;  and  that,  as  free  and  independent 
states,  they  have  full  power  to  levy  war,  conclude  peace, 
contract  alliances,  establish  commerce,  and  to  do  all 


CH.  I.]  HISTORY  OF  THE  REVOLUTION.  89 

Other  acts  and  things,  which  independent  states  may  of 
right  do." 

§  1 10.  From  the  moment  of  the  declaration  of  inde- 
pendence, if  not  for  most  purposes  at  an  antecedent 
period,  the  united  colonies  must  be  considered  as  be- 
ing a  nation  de  facto,  having  a  general  government 
over  it  created,  and  acting  by  the  general  consent  of 
the  people  of  all  the  colonies.  The  powers  of  that 
government  were  not,  and  indeed  could  not  be  well 
defined.  But  still  its  exclusive  sovereignty,  in  many 
cases,  was  firmly  established  ;  and  its  controlling  power 
over  the  states  was  in  most,  if  not  in  all  national  meas- 
ures, universall}'  admitted.  The  articles  of  confedera- 
tion, of  which  we  shall  have  occasion  to  speak  more 
hereafter,  were  not  prepared  or  adopted  by  congress 
until  November,  1777  ;  they  were  not  signed  or  rati- 
fied by  any  of  the  states  until  July,  1778  ;  and  they 
were  not  ratified,  so  as  to  become  obligatory  upon  all 
the  states,  until  March,  1781.  In  the  intermediate 
time,  congress  continued  to  exercise  the  powers  of  a 
general  government^  whose  acts  were  binding  on  all 
the  states.  And  though  they  constantly  admitted  the 
states  to  be  "  sovereign  and  independent  communi- 
ties ; "  yet  it  must  be  obvious,  that  the  terms  were 
used  in  the  subordinate  and  limited  sense  already 
alluded  to ;  for  it  was  impossible  to  use  them  in 
any  other  sense,  since  a  majority  of  the  states  could  by 
their  public  acts  in  congress  control  and  bind  the  mi- 
nority. Among  the  exclusive  powers  exercised  by  con- 
gress, were  the  power  to  declare  war  and  make  peace ; 
to  authorize  captures;  to  institute  appellate  prize 
courts;  to  direct  and  control  all  national,  military,  and 
naval  operations;  to  form  alliances,  and  make  treaties; 
to  contract  debts,  and  issue  bills  of  credit  upon  nation- 

Ahr.  12 


90  HISTORY  OF  THE  REVOLUTION.       [BOOK  II. 

al  account.  In  respect  to  foreign  governments,  we 
were  politically  known  as  the  United  States*  only  ;  and 
it  was  in  our  national  capacity,  as  such,  that  we  sent 
and  received  ambassadors,  entered  into  treaties  and 
alliances,  and  were  admitted  into  the  general  community 
of  nations,  who  might  exercise  the  right  of  belligerents, 
and  claim  an  equality  of  sovereign  powers  and  preroga- 
tives. 

^  111.  In  respect  to  the  powers  of  the  continental 
congress  exercised  before  the  adoption  of  the  articles 
of  confederation,  few  questions  were  judicially  discuss- 
ed during  the  revolutionary  contest ;  for  men  had  not 
leisure  in  the  heat  of  war  nicely  to  scrutinize  or  weigh 
such  subjects  ;  inter  arma  silent  leges, .  The  people, 
relying  on  the  wisdom  and  patriotism  of  congress,  si- 
lently acquiesced  in  whatever  authority  they  assumed. 
But  soon  after  the  organization  of  the  present  govern- 
ment, the  question  was  most  elaborately  discussed  be- 
fore the  Supreme  Court  of  the  United  States,  in  a  case 
calling  for  an  exposition  of  the  appellate  jurisdiction  of 
congress  in  prize  causes  before  the,  ratification  of  the 
confederation.  The  result  of  that  examination  was, 
that  congress,  before  the  confederation,  possessed,  by 
the  consent  of  the  people  of  the  United  States,  sove- 
reign and  supreme  powers  for  national  purposes  ;  and 
among  others,  the  supreme  powers  of  peace  and  war, 
and,  as  an  incident,  the  right  of  entertaining  appeals  in 
the  last  resort  in  prize  causes,  even  in  opposition  to 
state  legislation.  And  that  the  actual  powers  exercis- 
ed by  congress,  in  respect  to  national  objects,  furnish- 
ed the  best  exposition  of  its  constitutional  authority, 
since  they  Emanated  from  the  representatives  of  the 
people,  and  were  acquiesced  in  by  the  people. 


CH.  II.]         ORIGIN  OF  THE  CONFEDERATION.  91 

CHAPTER  II. 

ORIGIN    OF    THE    CONFEDERATION. 

§  112.  The  union,  thus  formed,  grew  out  of  the 
exigences  of  the  times;  and  from  its  nature  and  objects 
might  be  deemed  temporary,  extending  only  to  the 
maintenance  of  the  common  hberties  and  independence 
of  the  states,  and  to  terminate  with  the  return  of  peace 
with  Great  Britain,  and  the  accompHshment  of  the  ends 
of  the  revolutionary  contest.  It  was  obvious  to  reflect- 
ing minds,  that  such  a  future  separation  of  the  states 
into  absolute,  independent  communities  with  no  mutual 
ties,  or  controlling  national  government,  would  be  fraught 
with  the  most  imminent  dangers  to  their  common  safety 
and  peace,  and  expose  them  not  only  to  the  chance  of 
re-conquest  by  Great  Britain,  after  such  separation  in 
detached  contests,  but  also  to  all  the  hazards  of  internal 
w^arfare  and  civil  dissensions.  So,  that  those,  who  had 
stood  side  by  side  in  the  common  cause  against  Great 
Britain,  might  then,  by  the  intrigues  of  their  enemies, 
and  the  jealousies  always  incident  to  neighbouring  na- 
tions, become  instruments,  in  the  hands  of  the  ambitious 
abroad,  or  the  corrupt  at  home,  to  aid  in  the  mutual 
destruction  of  each  other;  and  thus  all  sucessively 
fall,  the  victims  of  a  domestic  or  foreign  tyranny. 
Such  considerations  could  not  but  have  great  weight 
with  all  honest  and  patriotic  citizens,  independent  of 
the  real  blessings,  which  a  permanent  union  could  not 
fail  to  secure  throughout  all  the  states. 

^  113.  It  will  be  an  instructive  and  useful  lesson  to 
us  to  trace  historically  the  steps,  which  led  to  the  form- 
ation and  final  adoption  of  the  articles  of  confederation 


92  HISTORY  OF  THE  CONFEDERATION.      [bOOK  II. 

and  perpetual  union  between  the  United  States.  It  will 
be  instructive  by  disclosing  the  real  difficulties  attend- 
ant upon  such  a  plan,  even  in  times,  when  the  necessi- 
ty of  it  was  forced  upon  the  minds  of  men  not  only  by 
common  dangers,  but  by  common  protection,  by  com- 
mon feelings  of  affection,  and  by  common  efforts  of 
defence.  It  will  be  useful,  by  moderating  the  ardour  of 
inexperienced  minds,  which  are  apt  to  imagine,  that  the 
theory  of  government  is  too  plain,  and  the  principles, 
on  which  it  should  be  formed,  too  obvious,  to  leave 
much  doubt  for  the  exercise  of  the  wisdom  of  states- 
men, or  the  ingenuity  of  speculatists.  Nothing  is 
indeed  more  difficult  to  foresee,  than  the  practical 
operation  of  given  powers,  unless  it  be  the  practical 
operation  of  restrictions,  intended  to  control  those 
powers. 

§  114.  On  the  1 1th  of  June,  1776,  the  same  day,  on 
which  the  committee  for  preparing  the  declaration  of 
independence  v^as  appointed,  congress  resolved,  that 
"  a  committee  be  appointed  to  prepare  and  digest  the 
form  of  a  confederation  to  be  entered  into  between 
these  colonies ;  "  and  on  the  next  day  a  committee  was 
accordingly  appointed,  consisting  of  a  member  from 
each  colon3\  Nearly  a  year  before  this  period,  (viz. 
on  the  21st  of  July,  1775,)  Dr.  Frabklin  had  submit- 
ted to  congress  a  sketch  of  articles  of  confederation, 
which  does  not,  however,  appear  to  have  been  acted  on. 
These  articles  contemplated  a  union,  until  a  reconcilia- 
tion with  Great  Britain,  and  on  failure  thereof,  the  con- 
federation to  be  perpetual. 

§  115.  On  the  12th  of  July,  1776,  the  committee, 
appointed  to  prepare  articles  of  confederation,  present- 
ed a  draft,  which  was  in  the  hand-writing  of  Mr. 
Dickinson,  one  of  the  committee,  and  a  delegate  from 


CH.  II.]         ORIGIN  OF  THE  CONFEDERATION. 


93 


Pennsylvania.  The  draft,  so  reported,  was  debated 
from  the  22d  to  the  31st  of  July,  and  on  several  days 
between  the  5th  and  20th  of  August,  1776.  On  this 
last  day,  congress,  in  committee  of  the  whole,  reported 
a  new  draft,  which  was  ordered  to  be  printed  for  the  use 
of  the  members. 

§  116.  The  subject  seems  not  again  to  have  been 
touched  until  the  8th  of  April,  1777,  and  the  articles 
were  debated  at  several  times  between  that  time  and 
the  15th  of  November  of  the  same  year.  On  this  last 
day  thQ  articles  were  reported  with  sundry  amend- 
ments, and  finally  adopted  by  congress.  A  committee 
was  then  appointed  to  draft,  and  they  accordingly 
drafted,  a  circular  letter,  requesting  the  states  respec- 
tively to  authorize  their  delegates  in  congress  to  sub- 
scribe the  same  in  behalf  of  the  state. 

^  117.  Notwithstanding  the  strong  and  eloquent 
appeal  made  to  the  states  in  this  letter  it  carried  con- 
viction very  slowly  to  the  minds  of  the  local  legislatures. 
Many  objections  were  stated ;  and  many  amendments 
were  proposed.  All  of  them,  however,  were  rejected 
by  congress,  not  probably  because  they  were  all  deemed 
inexpedient  or  improper  in  themselves ;  but  from  the 
danger  of  sending  the  instrument  back  again  to  all  the 
states,  for  reconsideration.  Accordingly  on  the  26th 
of  June,  1 778,  a  copy,  engrossed  for  ratification,  was 
prepared,  and  the  ratification  begun  on  the  9th  day  of 
July  following.  It  was  ratified  by  all  the  states,  except 
Delaware  and  Maryland,  in  1778;  by  Delaware  in  1779, 
and  by  Maryland  on  the  first  of  March,  1781,  from 
which  last  'date  its  final  ratification  took  efiect,  and  was 
joyfully  announced  by  congress. 


94  DECLINE  AND  FALL  [bOOK  II. 

CHAPTER  III. 

DECLINE  AND  FALL  OF  THE  CONFEDERATION. 

§  118.  Any  survey,  however  slight,  of  the  confed- 
eration will  impress  the  mind  with  the  intrinsic  difficul- 
ties which  attended  the  formation  of  its  principal  fea- 
tures. It  is  well  known,  that  upon  three  important 
points,  touching  the  common  rights  and  interests  of  the 
several  states,  much  diversity  of  opinion  prevailed,  and 
many  animated  discussions  took  place.  The  first  was, 
as  to  the  mode  of  voting  in  congress,  whether  it  should 
be  by  states,  or  according  to  wealth,  or  population. 
The  second,  as  to  the  rule,  by  which  the  expenses  of 
the  Union  should  be  apportioned  among  the  states. 
And  the  third,  relative  to  the  disposal  of  the  vacant  and 
unappropriated  lands  in  the  western  territory. 

^  119.  The  leading  defects  of  the  confederation  may 
be  enumerated  under  the  following  heads  : 

In  the  first  place,  there  was  an  utter  want  of  all  coer- 
cive authority  to  carry  into  effect  its  own  constitutional 
measures.  This,  of  itself,  was  sufficient  to  destroy  its 
whole  efficiency,  as  a  superintending  government,  if 
that  may  be  called  a  government,  which  possessed  no 
one  solid  attribute  of  power.  It  has  been  justly  ob- 
served, that  "a  government  authorized  to  declare  war, 
but  relying  on  independent  states  for  the  means  of 
prosecuting  it;  capable  of  contracting  debts,  and  of 
pledging  the  public  faith  for  their  payment ;  but  de- 
pending on  thirteen  distinct  sovereignties  for  the  pre- 
servation of  that  faith ;  could  only  be  rescued  from  ig- 
nominy and  contempt  by  finding  those  sovereignties 
administered  by  men  exempt  from  the  passions  incident 


CH.  III.]  OF  THE  CONFEDERATION. 


95 


to  human  nature."  That  is,  by  supposing  a  case,  in 
which  all  human  governments  would  become  unneces- 
sary, and  all  differences  of  opinion  would  become  im- 
possible. In  truth,  congress  possessed  only  the^power 
of  recommendation. 

^  120.  The  fact  corresponded  with  the  theory. 
Even  during  the  revolution,  while  all  hearts  and  hands 
were  engaged  in  the  common  cause,  many  of  the  mea- 
sures of  congress  were  defeated  by  the  inactivity  of 
the  states ;  and  in  some  instances  the  exercise  of  its 
powers  were  resisted.  But  after  the  peace  of  1783, 
such  opposition  became  common,  and  gradually  extend- 
ed its  sphere  of  activity,  until,  in  the  expressive  lan- 
guage already  quoted,  "  the  confederation  became  a 
shadow  without  the  substance."  There  were  no 
national  courts  having  original  or  appellate  jurisdiction 
over  cases  regarding  the  powers  of  the  union  ;  and  if 
there  had  been,  the  relief  would  have  been  but  of  a 
very  partial  nature,  since,  without  some  act  of  state 
legislation,  many  of  those  powers  could  not  be  brought 
into  hfe. 

§  121.  A  striking  illustration  of  these  remarks  may 
he  found  in  our  juridical  history.  The  power  of  appeal 
in  prize  causes,  as  an  incident  to  the  sovereign  powers 
of  peace  and  war,  was  asserted  by  congress  after  the 
most  elaborate  consideration,  and  supported  by  the 
voice  of  ten  states,  antecedent  to  the  ratification  of  the 
articles  of  confederation.  The  exercise  of  that  power 
was,  however,  resisted  by  the  state  courts,  notwith- 
standing its  immense  importance  to  the  preservation 
of  the  rights  of  independent  neutral  nations.  The  con- 
federation gave,  in  express  terms,  this  right  of  appeal. 
The  deci;:ees  of  the  court  of  appeals  were  equally  re- 
sisted ;  and  in  fact,  they  remained  a  dead  letter,  until 


96  DECLINE    AND    FALL  [BOOK  II. 

they  were  enforced  by  the  courts  of  the  United  States 
under  the  present  constitution. 

^  122.  A  farther  illustration  of  this  topic  may  be 
gathered  from  the  palpable  defect  in  the  confederation, 
of  any  power  to  give  a  sanction  to  its  laws.  Congress 
had  no  power  to  exact  obedience,  or  jmnish  disobedi- 
ence to  its  ordinances.  They  could  neither  impose 
fines,  nor  direct  imprisonment,  nor  divest  privileges,  nor 
declare  forfeitures,  nor  suspend  refractory  officers. 
There  was  in  the  confederation  no  express  authority  to 
exercise  force ;  and  though  it  might  ordinarily  be  im- 
plied, as  an  incident,  the  right  to  make  such  implication 
was  prohibited,  for  each  state  was  to  "  retain  every 
power,  right,  and.  jurisdiction,  not  expressly  delegated 
to  congress."  The  consequence  naturally  was,  that  the 
resolutions  of  congress  were  disregarded,  not  only  by 
states  but  by  individuals.  Men  followed  their  interests 
more  than  their  duties;  they  cared  litde  for  persuasions, 
which  came  without  force  ;  or  for  recommendations, 
which  appealed  only  to  their  consciences  or  their  patri- 
otism. Indeed  it  seems  utterly  preposterous  to  call 
that  a  government,  which  has  no  power  to  pass  laws ; 
or  those  enactments  laws,  which  are  attended  with  no 
sanction,  and  have  no  penalty  or  punishment  annexed 
to  the  disobedience  of  them. 

§  123.  But  a  still  more  striking  defect  was  the  total 
want  of  power  to  lay  and  levy  taxes,  or  to  raise  reve- 
nue to  defray  the  ordinary  expenses  of  government. 
The  whole  power,  confided  to  congress  upon  this  head, 
was  the  power  "  to  ascertain  the  sums  necessary  to  be 
raised  for  the  service  of  the  United  States;"  and  to 
apportion  the  quota  or  proportion  on  each  state.  But 
the  power  was  expressly  reserved  to  the  states  to  lay 
and  levy  the  taxes,  and  of  course  the  time,  as  well  as 


CH.  IV.]  OF  THE  CONFEDERATION.  97 

the  mode  of  payment,  was  extremely  uncertain.  The 
evils  resulting  from  this  source,  even  during  the  revolu- 
tionary war,  were  of  incalculable  extent ;  and,  but  for 
the  good  fortune  of  congress  in  obtaining  foreign  loans, 
it  is  far  from  being  certain,  that  they  would  not  have 
been  fatal.  The  principle,  which  formed  the  basis  of 
the  apportionment,  was  sufficiently  objectionable,  as  it 
took  a  standard  extremely  unequal  in  its  operation  upon 
the  different  states.  The  value  of  its  lands  was  by  no 
means  a  just  representative  of  the  proportionate  contri- 
butions, which  each  state  ought  to  make  towards  the 
discharge  of  the  common  burthens. 

^  124.  But  this  consideration  sinks  into  utter  insig- 
nificance, in  comparison  with  others.  Requisitions 
were  to  be  made  upon  thirteen  independent  states ;  and 
it  depended  upon  the  good  will  of  the  legislature  of  each 
state,  whether  it  would  comply  at  all ;  or  if  it  did  com- 
ply, at  what  time,  and  in  what  manner.  The  very 
tardiness  of  such  an  operation,  in  the  ordinary  course 
of  things,  was  sufficient  to  involve  the  government  in 
perpetual  financial  embarrassments,  and  to  defeat  many 
of  its  best  measures,  even  when  there  was  the  utmost 
good  faith  and  promptitude  on  the  part  of  the  states  in 
complying  with  the  requisitions.  But  many  reasons 
concurred  to  produce  a  total  want  of  promptitude  on 
the  part  of  the  states,  and,  in  numerous  instances,  a 
total  disregard  of  the  requisitions.  Indeed,  from  the 
moment,  that  the  peace  of  1783  secured  the  country 
from  the  distressing  calamities  of  war^  a  general  relaxa- 
tion took  place ;  and  many  of  the  states  successively 
found  apologies  for  their  gross  neglect  in  evils  common 
to  all,  or  complaints  listened  to  by  all.  Many  solemn 
and  affecting  appeals  were,  from  time  to  time,  made  by 
congress  to  the  states;  but  they  were  attended  with  no 

Abr.  13 


98  DECLINE  AND  FALL  [bOOK  II. 

salutary  effect.  Many  measures  were  devised  to  ob- 
viate the  difficulties,  nay,  the  dangers,  which  threatened 
the  Union ;  but  they  failed  to  produce  any  amendments 
in  the  confederation.  An  attempt  was  made  by  con- 
gress, during  the  war,  to  procure  from  the  states  an 
authority  to  levy  an  impost  of  five  per  cent,  upon  im- 
ported and  prize  goods;  but  the  assent  of  all  the  states 
could  not  be  procured.  The  treasury  was  empty ;  the 
credit  of  the  confederacy  was  sunk  to  a  low  ebb  ;  the 
public  burthens  were  increasing ;  and  the  public  faith 
was  prostrate. 

^  125.  In  February,  1786,  congress  determined  to 
make  another  and  last  appeal  to  the  states  upon  the 
subject.  The  report  adopted  upon  that  occasion  con- 
tains a  melancholy  picture  of  the  state  of  the  nation. 
"  In  the  course  of  this  inquiry  (said  the  report)  it  most 
clearly  appeared,  that  the  requisitions  of  congress  for 
eight  years  past  have  been  so  irregular  in  their  opera- 
tion, so  uncertain  in  their  collection,  and  so  evidently 
unproductive,  that  a  reliance  on  them  in  future,  as  a 
source,  from  whence  monies  are  to  be  drawn  to  dis- 
charge the  engagements  of  the  confederation,  definite 
as  they  are  in  time  and  amount,  would  he  no  less  dis- 
honourable to  the  understandings  of  those,  who  enter- 
tained such  confidence^  than  it  would  be  dangerous  to 
the  welfare  and  peace  of  the  Union."  "It  has  become 
the  duty  of  congress  to  declare  most  explicidy,  that  the 
crisis  has  arrived,  when  the  people  ol  these  United 
States,  by  whose  will  and  for  whose  benefit  the  federal 
government  was  instituted,  must  decide,  whether  they 
will  support  their  rank,  as  a  nation,  by  maintaining  the 
public  faith  at  home  or  abroad ;  or  whether,  for  want  of 
a  timely  exertion  in  establishing  a  general  revenue,  and 
thereby  giving  strength  to  the  confederacy,  they  will 


CH.  IV.]  OF  THE  CONFEDERATION.  99 

hazard,  not  only  the  existence  of  the  Union,  but  of  those 
great  and  invaluable  privileges,  for  which  they  have  so 
arduously  and  so  honourably  contended."  After  the 
adoption  of  this  report,  three  states,  which  had  hitherto 
stood  aloof,  came  into  the  measure.  New-York  alone 
refused  to  comply  with  it ;  and  after  a  most  animated 
debate  in  her  legislature,  she  remained  inflexible,  and 
the  fate  of  the  measure  was  sealed  forever  by  her 
solitary  negative. 

§  126.  Independent,  however,  of  this  inability  to  lay 
taxes,  or  collect  revenue,  the  want  of  any  power  in  con- 
gress to  regulate  foreign  or  domestic  commerce  was 
deemed  a  leading  defect  in  the  confederation.  This 
evil  was  felt  in  a  comparatively  slight  degree  during  the 
war.  But  when  the  return  of  peace  restored  the  country 
to  its  ordinary  commercial  relations,  the  want  of  some 
uniform  system  to  regulate  them  w^as  early  perceived  ; 
and  the  calamities,  which  followed  our  shipping  and 
navigation,  our  domestic,  as  well  as  our  foreign  trade, 
convinced  the  reflecting,  that  ruin  impended  upon  these 
and  other  vital  interests,  unless  a  national  remedy  could 
be  devised.  We  accordingly  find  the  pubhc  papers  of 
that  period  crowded  with  complaints  on  this  subject. 
It  was,  indeed,  idle  and  visionary  to  suppose,  that  while 
thirteen  independent  states  possessed  the  exclusive 
power  of  regulating  commerce,  there  could  be  found 
any  uniformity  of  system,  or  any  harmony  and  co- 
operation for  the  general  welfare.  Measures  of  a  com- 
mercial nature,  which  were  adopted  in  one  state  from  a 
sense  of  its  own  interests,  would  be  often  counter- 
vailed, or  rejected  by  other  states  from  similar  motives. 
If  one  state  should  deem  a  navigation  act  favourable  to 
its  own  growth,  the  efficacy  of  such  a  measure  might 
be  defeated  by  the  jealousy  or  poUcy  of  a  neighbouring 


100  DECLINE  AND  FALL  [bOOK  II. 

State.  If  one  should  levy  duties  to  maintain  its  own 
government  and  resources,  there  were  many  tempta- 
tions for  its  neighbours  to  adopt  the  system  of  free 
trade,  to  draw  to  itself  a  larger  share  of  foreign  and 
domestic  commerce.  The  agricultural  states  might 
easily  suppose,  that  they  had  not  an  equal  interest  in  a 
restrictive  system  with  the  navigating  states.  And,  at 
all  events,  each  state  would  legislate  according  to  its 
estimate  of  its  own  interests,  the  importance  of  its  own 
products,  and  the  local  advantages  or  disadvantages  of 
its  position  in  a  political  or  commercial  view.  To  do 
otherwise  would  be  to  sacrifice  its  immediate  interests, 
without  any  adequate  or  enduring  consideration;  to 
legislate  for  others,  and  not  for  itself ;  to  dispense 
blessings  abroad,  without  regarding  the  security  of  those 
at  home. 

§  127.  These  evils  were  aggravated  by  the  situation 
of  our  foreign  commerce.     During  the  war,  our  com- 
merce was  nearly  annihilated  by   the   superior  naval 
power  of  the  enemy ;  and  the  return  of  peace  enabled 
foreign  nations,  and  especially  Great  Britain,  in  a  great 
measure  to  monopolize  all   the  benefits  of  our  home 
trade.     In  the  first  place,  our  navigation,  having  no  pro- 
tection, was  unable  to  engage  in  competition  with  for- 
eign ships.     In  the  next  place,  our  supplies  were  almost 
altogether  furnished  by  foreign  importers  or  on  foreign 
account.     We  were  almost  flooded  with  foreign  manu- 
factures, while  our-  own  produce  bore  but  a  reduced 
price.     It  was  easy  to  foresee,  that  such  a  state  of 
things  must  soon  absorb  all  our  means  ;  and  as  our  in- 
dustry had  but  a  narrow  scope,  would  soon  reduce 
us  to  absolute  poverty.     Our  trade  in  our  own  ships 
with  foreign  nations  was  depressed  in  an  equal  degree ; 
for  it  was  loaded  with  heavy  restrictions  in  their  ports. 


CH.  IV.]  OF  THE  CONFEDERATION.  101 

While,  for  instance,  British  ships  with  their  commodi- 
ties had  free  admission  into  our  ports,  American  ships 
and  exports  were  loaded  with  heavy  exactions,  or  pro- 
hibited from  entry  into  British  ports.  We  were, 
therefore,  the  victims  of  our  own  imbecility,  and  reduc- 
ed to  a  complete  subjection  to  the  commercial  regula- 
tions of  other  countries,  notwithstanding  our  boasts  of 
freedom  and  independence.  Congress  had  been  long 
sensible  of  the  fatal  effects  flowing  from  this  source ; 
but  their  efforts  to  ward  off  the  mischiefs  had  been 
unsuccessful.  Being  invested  by  the  articles  of  con- 
federation w^ith  a  hmited  power  to  form  commercial 
treaties,  they  endeavoured  to  enter  into  treaties  with  for- 
eign powers  upon  principles  of  reciprocity.  But  these 
negotiations  were,  as  might  be  anticipated,  unsuccess- 
ful, for  the  parties  met  upon  very  unequal  terms.  For- 
eign nations,  and  especially  Great  Britain,  felt  secure  in 
the  possession  of  their  present  command  of  our  trade 
and  had  not  the  least  inducement  to  part  with  a  single 
advantage.  It  was  further  pressed  upon  us,  with  a  truth 
equally  humiliating  and  undeniable,  that  congress  pos- 
sessed no  effectual  power  to  guaranty  the  faithful  observ- 
ance of  any  commercial  regulations ;  and  there  must  in 
such  cases  be  reciprocal  obligations. 

^  128.  There  were  other  defects  seriously  urged 
against  the  confederation,  which,  although  not  of  such  a 
fatal  tendency,  as  those  already  enumerated,  were 
deemed  of  sufficient  importance  to  justify  doubts,  as  to 
its  efficacy  as  a  bond  of  union,  or  an  enduring  scheme 
of  government.  It  is  not  necessary  to  go  at  large  into 
a  consideration  of  them.  It  will  suffice  for  the  present 
purpose  to  enumerate  the  principal  heads.  (1.)  The 
principle  of  regulating  the  contributions  of  the  states 
into  the  common  treasury  by  quotas,  apportioned  ac- 


102  DECLINE  AND  FALL  [bOOK  II. 

cording  to  the  value  of  lands,  which  (as  has  been  already 
suggested)  was  objected  to,  as  unjust,  unequal,  and 
inconvenient  in  its  operation.  (2.)  That  want  of  a 
mutual  guaranty  of  the  state  governments,  so  as  to  pro- 
tect them  against  domestic  insurrections,  and  usurpa- 
tions destructive  of  their  liberty.  (3.)  The  want  of  a 
direct  power  to  raise  armies,  which  was  objected  to,  as 
unfriendly  to  vigour  and  promptitude  of  action,  as  well 
as  to  economy  and  a  just  distribution  of  the  public  bur- 
thens. (4.)  The  right  of  equal  suffrage  among  all  the 
states,  so  that  the  least  in  point  of  wealth,  populatiqp, 
and  means  stood  equal  in  the  scale  of  representation 
with  those,  which  were  the  largest.  From  this  circum- 
stance it  might,  nay  it  must  happen,  that  a  majority  of 
the  states,  constituting  a  third  only  of  the  people  of 
America,  could  control  the  rights  and  interests  of  the 
other  two  thirds.  Nay,  it  was  constitutionally,  not 
only  possible,  but  true  in  fact,  that  even  the  votes  of 
nine  states  might  not  comprehend  a  majority  of  the 
people  in  the  Union.  The  minority,  therefore,  possess- 
ed a  negative  upon  the  majority.  (5.)  The  organiza- 
tion of  the  whole  powers  of  the  general  government  in 
a  single  assembly,  without  any  separate  or  distinct  dis- 
tribution of  the  executive,  judicial,  and  legislative 
functions.  It  was  objected,  that  either  the  whole  su- 
perstructure would  thus  fall,  from  its  own  intrinsic  fee- 
bleness ;  or,  engrossing  all  the  attributes  of  sovereignty, 
entail  upon  the  country  a  most  execrable  form  of  gov- 
ernment in  the  shape  of  an  irresponsible  aristocracy. 
(6.)  The  want  of  an  exclusive  power  in  the  general 
government  to  issue  paper  money ;  and  thus  to  prevent 
the  inundation  of  the  country  with  a  base  currency, 
calculated  to  destroy  public  faith,  as  well  as  private 
morals.     (7.)  The  too  frequent  rotation  required  by 


CH.  IV.]  OF  THE  CONFEDERATION.  103 

the  confederation  in  the  office  of  members  of  congress, 
by  which  the  advantages,  resulting  from  long  experi- 
ence and  knowledge  in  the  public  affairs,  were  lost  to 
the  public  councils.  (8.)  The  want  of  judiciary  power 
co-extensive  with  the  powers  of  the  general  govern- 
ment. 

§  129.  The  last  defect,  which  seems  worthy  of  enu- 
meration, is,  that  the  confederation  never  had  a  ratifi- 
cation of  the  PEOPLE.  Upon  this  objection,  it  will  be 
sufficient  to  quote  a  single  passage  from  the  Fed- 
erahst,  as  it  affords  a  very  striking  commentary  upon 
some  extraordinary  doctrines  recently  promulgat- 
ed. "  Resting  on  no  better  foundation  than  the  consent 
of  the  state  legislatures,  it  [the  confederation]  has  been 
exposed  to  frequent  and  intricate  questions  concerning 
the  validity  of  its  powers ;  and  has,  in  some  instances, 
given  birth  to  the  enormous  doctrine  of  a  right  of  legis- 
lative repeal.  Owing  its  ratification  to  a  law  of  a  state, 
it  has  been  contended,  that  the  same  authority  might 
repeal  the  law,  by  which  it  was  ratified.  However  gross 
a  heresy  it  may  be  to  maintain,  that  a  party  to  a  com- 
pact has  a  right  to  revoke  that  compact,  the  doctrine 
itself  has  had  respectable  advocates.  The  possibility 
of  a  question  of  this  nature  proves  the  necessity  of 
laying  the  foundations  of  our  national  government  deep- 
er, than  in  the  mere  sanction  of  delegated  authority. 
The  fabric  of  American  empire  ought  to  rest  on  the 
solid  basis  of  the  consent  of  the  people.  The 
streams  of  national  power  ought  to  flow  immediately 
from  that  pure,  original  fountain  of  all  legitimate  au- 
thority." 

^  130.  Whatever  may  be  thought  as  to  some  of  these 
enumerated  defects,  whether  they  were  radical  defi- 
ciencies or  not,  there  cannot  be  a  doubt,  that  others  of 


104  FALL  OF  THE  CONFEDERATION.  [BOOK  II.  CH.  IV.] 

them  went  to  the  very  marrow  and  essence  of  govern- 
ment. There  had  been,  and  in  fact  then  were,  different 
parties  in  the  several  states,  entertaining  opinions  hostile, 
or  friendly  to  the  existence  of  a  general  government.  The 
former  would  naturally  cling  to  the  state  governments 
with  a  close  and  unabated  zeal,  and  deem  the  least  pos- 
sible delegation  of  power  to  the  Union  sufficient,  (if  any 
were  to  be  permitted,)  with  which  it  could  creep  on  in 
a  semi-animated  state.  The  latter  would  as  naturally 
desire,  that  the  powers  of  the  general  government 
should  have  a  real,  and  not  merely  a  suspended  vital- 
ity ;  that  it  should  act,  and  move,  and  guide,  and  not 
merely  totter  under  its  own  weight,  or  sink  into  a  drowsy 
decrepitude,  powerless  and  palsied.  But  each  party  must 
have  felt,  that  the  confederation  had  at  last  totally  fail- 
ed, as  an  effectual  instrument  of  government ;  that  its 
glory  was  departed,  and  its  days  of  labour  done ;  that 
it  stood  the  shadow  of  a  mighty  name ;  that  it  was  seen 
only,  as  a  decayed  monument  of  the  past,  incapable  of 
any  enduring  record  ;  that  the  steps  of  its  decline 
were  numbered  and  finished;  and  that  it  must  soon  be 
gathered  to  the  perishable  fragments  of  other  ages. 


BOOK  III. 

THE  CONSTITUTION  OF  THE  UNITED    STATES. 


CHAPTER  I. 

ORIGIN  AND  ADOPTION    OF  THE  CONSTITUTION. 

§  131.  In  this  state  of  things,  commissioners  were 
appointed  by  the  legislatures  of  Virginia  and  Maryland 
early  in  1 785,  to  form  a  compact  relative  to  the  naviga- 
tion  of  the  rivers  Potomac  and  Pocomoke,  and  the 
Chesapeake  Bay.  The  commissioners  having  met  in 
March,  in  that  year,  felt  the  want  of  more  enlarged 
powers,  and  particularly  of  powers  to  provide  for  a  lo- 
cal naval  force,  and  a  tariff  of  duties  upon  imports. 
Upon  receiving  their  recommendation,  the  legislature  of 
Virginia  passed  a  resolution  for  laying  the  subject 
of  a  tariff  before  all  the  states  composing  the  Union. 
Soon  afterwards,  in  January,  1786,  the  legislature  adopt- 
ed another  resolution,  appointing  commissioners,  "  who 
were  to  meet  such,  as  might  be  appointed  by  the  other 
states  in  the  Union,  at  a  time  and  place  to  be  agreed  on, 
to  take  into  consideration  the  trade  of  the  United 
States ;  to  examine  the  relative  situation  and  trade  of 
the  states ;  to  consider  how  far  a  uniform  system  in 
their  commercial  relations  may  be  necessary  to  their 
Abr.  14 


106        CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 

common  interest,  and  their  permanent  harmony ;  and 
to  report  to  the  several  states  such  an  act,  relative  to 
this  great  object,  as,  when  unanimously  ratified  by 
them,  will  enable  the  United  States  in  congress  assem- 
bled to  provide  for  the  same." 

§  132.  These  resolutions  were  communicated  to  the 
states,  and  a  convention  of  commissioners  from  five 
states  only,  viz.  New-York,  New-Jersey,  Pennsylva- 
nia, Delaware,  and  Virginia,  met  at  Annapolis,  in  Sep- 
tember, 1786.  After  discussing  the  subject^  they 
deemed  more  ample  powers  necessary,  and  as  well 
from  this  consideration,  as  because  a  small  number  only 
of  the  states  was  represented,  they  agreed  to  come  to 
no  decision,  but  to  frame  a  report  to  be  laid  before  the 
several  states,  as  well  as  before  congress.  In  this  re- 
port they  recommended  the  appointment  of  commission- 
ers from  all  the  states,  "to  meet  at  Philadelphia,  on  the 
second  Monday  of  May,  then  next,  to  take  into  consid- 
eration the  situation  of  the  United  States ;  to  devise 
such  further  provisions,  as  shall  appear  to  them  neces- 
sary, to  render  the  constitution  of  the  federal  govern- 
ment adequate  to  the  exigencies  of  the  Union ;  and  to 
report  such  an  act  for  that  purpose  to  the  United  States 
in  congress  assembled,  as  when  agreed  to  by  them, 
and  afterwards  confirmed  by  the  legislature  of  every 
state,  will  effectually  provide  for  the  same." 

^  133.  On  receiving  this  report,  the  legislature  of  | 
Virginia  passed  an  act  for  the  appointment  of  delegates  J 
to  meet  such,  as  might  be  appointed  by  other  states,  at 
Philadelphia.  The  report  was  also  received  in  con- 
gress. But  no  step  was  taken,  until  the  legislature  of 
New-York  instructed  its  delegation  in  congress  to  move 
a  resolution,  recommending  to  the  several  states  to  ap- 
point deputies  to  meet  in  convention  for  the  purpose 


CH.  I.]        ADOPTfON    OF    THE    CONSTITUTION.  107 

of  revising  and  proposing  amendments  to  the  federal 
constitution.  On  the  21st  of  February,  1787,  a  reso- 
lution was  accordingly  moved  and  carried  in  congress, 
recommending  a  convention  to  meet  in  Philadelphia, 
on  the  second  Monday  of  May  ensuing,  "  for  the  pur- 
pose of  revising  the  articles  of  confederation,  and  re- 
porting to  congress,  and  the  several  legislatures,  such 
alterations  and  provisions  therein,  as  shall,  w^hen  agreed 
to  in  congress,  and  confirmed  by  the  states,  render  the 
federal  constitution  adequate  to  the  exigencies  of  gov- 
ernment, and  the  preservation  of  the  Union."  The 
alarming  insurrection  then  existing  in  Massachusetts, 
without  doubt,  had  no  small  share  in  producing  this 
result.  The  report  of  congress,  on  that  subject,  at 
once  demonstrates  their  fears,  and  their  political  weak- 
ness. 

^  134.  At  the  time  and  place  appointed,  the  repre- 
sentatives of  twelve  states  assembled.  Rhode-Island 
alone  decHned  to  appoint  any  on  this  momentous  oc- 
casion. After  very  protracted  deliberations,  the  con- 
vention finally  adopted  the  plan  of  the  present  consti- 
tution, on  the  17th  of  September,  1787  ;  and  by  a  con- 
temporaneous resolution,  directed  it  to  be  "  laid  before 
the  United  States  in  congress  assembled,"  and  declar- 
ed their  opinion,  "  that  it  should  afterwards  be  submitted 
to  a  convention  of  delegates  chosen  in  each  state  by 
the  people  thereof,  under  a  recommendation  of  its  legis- 
lature, for  their  assent  and  ratification;^^  and  that  each 
convention,  assenting  to  and  ratifying  the  same,  should 
give  notice  thereof  to  congress.  The  convention  by  a 
further  resolution  declared  their  opinion,  that  as-  soon 
as  nine  states  had  ratified  the  constitution,  congress 
should  fix  a  day,  on  which  electors  should  be  appoint- 
ed by  the  states,  which  should  have  ratifiied  the  same, 


108     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

and  a  day,  on  which  the  electors  should  assemble 
and  vote  for  the  president,  and  the  time  and  place  of 
commencing  proceedings  under  the  constitution ;  and 
that  after  such  publication,  the  electors  should  be  ap- 
pointed, and  the  senators  and  representatives  elected. 
The  same  resolution  contained  further  recommenda- 
tions for  the  purpose  of  carrying  the  constitution  into 
effect. 

§  135.  Congress,  having  received  the  report  of  the 
convention,  on  the  28th  of  September,  1787,  unanimous- 
ly resolved,  "  that  the  said  report,  with  the  resolutions 
and  letter  accompanying  the  same,  be  transmitted  to 
the  several  legislatures  in  order  to  be  submitted  to  a 
convention  of  delegates  chosen  in  each  state  by  the  peo- 
ple thereof,  in  conformity  to  the  resolves  of  the  conven- 
tion, made  and  provided  in  that  case." 

§  136.  Conventions  in  the  various  states,  which  had 
been  represented  in  the  general  convention,  were  ac- 
cordingly called  by  their  respective  legislatures ;  and 
the  constitution  having  been  ratified  by  eleven  out  of 
the  twelve  states,  congress,  on  the  13th  of  September, 
1788,  passed  a  resolution  appointing  the  first  Wednes- 
day in  January  following,  for  the  choice  of  electors  of 
president;  the  first  Wednesday  of  February  following, 
for  the  assembling  of  the  electors  to  vote  for  a  president ; 
and  the  first  Wednesday  of  March  following,  at  the 
then  seat  of  congress  [New-York]  the  time  and  place 
for  commencing  proceedings  under  the  constitution. 
Electors  were  accordingly  appointed  in  the  several 
states,  who  met  and  gave  their  votes  for  a  president ; 
and  the  other  elections  for  senators  and  representatives 
having  been  duly  made,  on  Wednesday,  the  4th  of 
March,  1789,  congress  assembled  under  the  new  con- 
stitution, and  commenced  proceedings  under  it.     A 


CH.  I.]         ADOPTION  OF  THE  CONSTITUTION.  109 

quorum  of  both  houses,  however,  did  not  assemble  un- 
til the  6th  of  April,  when  the  votes  for  president  being 
counted,  it  was  found  that  George  Washington  was 
unanimously  elected  president,  and  John  Adams  was 
elected  vice-president.  On  the  30th  of  April,  president 
Washington  was  sworn  into  office,  and  the  government 
then  went  into  full  operation  in  all  its  departments. 

§  137.  North- Carolina  had  not,  as  yet,  ratified  the 
constitution.  The  first  convention  called  in  that  state, 
in  August,  1 788,  refused  to  ratify  it  without  some  pre- 
vious amendments,  and  a  declaration  of  rights.  In  a 
second  convention,  however,  called  in  November,  1789, 
this  state  adopted  the  constitution.  The  state  of 
Rhode-Island  had  dechned  to  call  a  convention ;  but* 
finally,  by  a  convention  held  in  May,  1790,  its  assent 
was  obtained ;  and  thus  all  the  thirteen  original  states 
became  parties  to  the  new  government. 

^  138.  Thus  was  achieved  another,  and  still  more 
glorious  triumph  in  the  cause  of  national  liberty,  than 
even  that,  which  separated  us  from  the  mother  country. 
By  it  we  fondly  trust,  that  our  republican  institutions 
will  grow  up,  and  be  nurtured  into  more  mature  strength 
and  vigour  ;  our  independence  be  secured  against 
foreign  usurpation  and  aggression  ;  our  domestic  bless- 
ings be  widely  diffused,  and  generally  felt ;  and  our 
union,  as  a  people,  be  perpetuated,  as  our  own  truest 
glory  and  support,  and  as  a  proud  example  of  a  wise 
and  beneficent  government,  entitled  to  the  respect,  if 
not  to  the  admiration  of  mankind. 


r 


110  CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 


CHAPTER  IT. 

OBJECTIONS    TO    THE    CONSTITUTION. 

^  139.  Let  it  not,  however,  be  supposed,  that  a 
constitution,  which  is  now  looked  upon  with  such 
general  favour  and  affection  by  the  peopld,  had  no  diffi- 
culties to  encounter  at  its  birth.  The  history  of  those 
times  is  full  of  melancholy  instruction  on  this  subject, 
at  once  to  admonish  us  of  past  dangers,  and  to  aw-aken 
us  to  a  lively  sense  of  the  necessity  of  future  vigilance. 
The  constitution  was  adopted  unanimously  by  Georgia, 
New-Jersey,  and  Delaware.  It  was  supported  by 
large  majorities  in  Pennsylvania,  Connecticut,  Maryland, 
and  South- Carolina.  It  was  carried  in  the  other  states 
by  small  majorities,  and  especially  in  Massachusetts, 
New-York,  and  Virginia,  by  little  more  than  a  prepon- 
derating vote. 

§  140.  Some  of  the  objections  were  to  the  supposed 
defects  and  omissions  in  the  instrument ;  others  were 
to  the  nature  and  extent  of  the  powers  conferred  by  it ; 
and  others  again  to  the  fundamental  plan  or  scheme  of 
its  organization. 

(1.)  It  was  objected  in  the  first  place,  that  the 
scheme  of  government  was  radically  wrong,  because  it 
was  not  a  confederation  of  the  states ;  but  a  govern- 
ment over  individuals.  It  was  said,  that  the  federal 
form,  which  regards  the  Union,  as  a  confederation  of 
sovereign  states,  ought  to  have  been  preserved ;  in- 
stead of  which  the  convention  had  framed  a  national 
government,  which  regards  the  Union,  as  a  consolida- 
tion of  states.     This  objection  was  far  from  being  uni- 


CH.    II.]       OB/ECTIONS  TO  TUB  CONSTITUTION*  111 

versal ;  for  many  admitted^,  that  there  ought  to  be  a 
government  over  individuals  tOfaVceitain  extent,  but  by 
no  means  to  the  extent  proposed^U  Jit  is  obvious,  that 
this  objection,  pushed  to  its  full  extent,  went  to  the  old 
question  of  the  confederation  ;  and  was  but  a  re-argu- 
ment of  the  point,  whether  there  should  exist  a  national 
government  adequate  to  the  protection  and  support  of  the 
Union.  In  its  mitigated  form  it  was  a  mere  question, 
as  to  the  extent  of  powers  to  be  confided  to  the  gen- 
eral government,  and  was  to  be  classed  accordingly. 
It  was  urged,  however,  with  no  inconsiderable  force 
and  emphasis ;  and  its  supporters  predicted  wdth  con- 
fidence, that  a  government  so  organized  would  soon 
become  corrupt  and  tyrannical,  "  and  absorb  the  legis- 
lative, executive,  and  judicial  powers  of  the  several 
states,  and  produce  from  their  ruins  one  consolidated 
government,  which,  from  the  nature  of  things,  would  be 
an  iron-handed  despotism." 

^  141.  But  the  friends  of  the  constitution  met  the 
objection  by  asserting  the  indispensable  necessity  of 
a  form  of  government,  like  that  proposed,  and  demon- 
strating the  utter  imbecihty  of  a  mere  confederation, 
without  powers  acting  directly  upon  individuals.  They 
considered,  that  the  constitution  was  partly  federal, 
and  partly  national  in  its  character,  and  distribution 
*of  powers.  In  its  origin  and  establishment  it  was 
federal.  In  some  of  its  relations  it  was  federal ;  in 
others,  national.  In  the  senate  it  was  federal ;  in  the 
house  of  representatives  it  was  national ;  in  the  execu- 
tive it  was  of  a  compound  character ;  in  the  operation 
of  its  powers  it  was  national ;  in  the  extent  of  its  pow- 
ers, federal.  It  acted  on  individuals,  and  not  on  states 
merely.  But  its  powers  were  limited,  and  left  a  large 
mass  of  sovereignty  in  the  states.     In  making  amend- 


112  CONSTITUTION  OF  THE  U.  STATES.        [bOOK  III. 

ments,  it  was  also  of  a  compound  character,  requiring 
the  concurrence  of  more  than  a  majority,  and  less  than 
the  whole  of  the  states.  So,  that  on  the  whole  their 
conclusion  was,  that  "  the  constitution  is,  in  strictness, 
neither  a  national  nor  a  federal  constitution,  but  a  com- 
position of  both.  In  its  foundation  it  is  federal,  not 
national ;  in  the  sources,  from  which  the  ordinary  pow- 
ers of  the  government  are  drawn,  it  is  partly  federal  and 
partly  national ;  in  the  operation  of  these  powers  it  is 
national,  not  federal;  in  the  extent  of  them  again  it  is 
federal,  not  national  ;  and,  finally,  in  the  authoritative 
mode  of  introducing  amendments  it  is  neither  wholly 
federal,  nor  wholly  national." 

^  142.  If  the  original  structure  of  the  government 
w^as,  as  has  been  shown,  a  fertile  source  of  opposition, 
another  objection  of  a  more  wide  and  imposing  nature 
was  drawn  from  the  nature  and  extent  of  its  powers. 
This,  indeed,  like  the  former,  gave  rise  to  most  animat- 
ed discussions,  in  which  reason  was  employed  to  de- 
monstrate the  mischiefs  of  the  system,  and  imagination 
to  portray  them  in  all  the  exaggerations,  which  fear  and 
prophesy  could  invent.  Looking  back,  indeed,  to  that 
period  with  the  calmness,  with  which  we  naturally 
review  events  and  occurrences,  which  are  now  felt  only 
as  matters  of  history,  one  is  surprised  at  the  futility  of 
some  of  the  objections,  the  absurdity  of  others,  and  the 
overwrought  colouring  of  almost  all,  which  were  urged 
on  this  head  against  the  constitution.  That  some  of 
them  had  a  just  foundation,  need  not  be  denied  or  con- 
cealed ;  for  the  system  was  human,  and  the  result  of 
compromise  and  conciliation,  in  which  something  of  the 
correctness  of  theory  was  yielded  to  the  interests  or 
prejudices  of  particular  states,  and  something  of  ine- 
qusJity  of  benefit  borne  for  the  common  good. 


CH.  II.]      OBJECTIONS  TO  THE  CONSTITUTION.  1 13 

^  143.  The  objections  from  different  quarters  were 
not  only  of  different  degrees  and  magnitude,  but  often 
of  totally  opposite  natures.  With  some  persons  the 
mass  of  the  powers  was  a  formidable  objection ;  with 
others,  the  distribution  of  those  powers.  With  some 
the  equality  of  vote  in  the  senate  was  exceptionable  ; 
with  others  the  inequahty  of  representation  in  the  house. 
With  some  the  power  of  regulating  the  times  and 
places  of  elections  was  fatal ;  with  others  the  power  of 
regulating  commerce  by  a  bare  majority.  With  some 
the  power  of  direct  taxation  was  an  intolerable  griev- 
ance ;  with  others  the  power  of  indirect  taxation  by 
duties  on  imports.  With  some  the  restraint  of  the  state 
legislatures  from  laying  duties  upon  exports,  and  pass- 
ing ex  post  facto  laws,  was  incorrect ;  with  others  the 
lodging  of  the  executive  power  in  a  single  magistrate. 
With  some  the  term  of  office  of  the  senators  and  f e- 
presentatives  was  too  long ;  with  others  the  term  of 
office  of  the  president  was  obnoxious  to  a  like  censure, 
as  well  as  his  re-efigibiUty.  With  some  the  intermixture 
of  the  legislative,  executive,  and  judicial  functions  in  the 
senate  was  a  mischievous  departure  from  all  ideas  of 
regular  government ;  with  others  the  non -participation 
of  the  house  of  representatives  in  the  same  functions 
was  the  alarming  evil.  With  some  the  powers  of  the 
president  were  alarming  and  dangerous  to  liberty ;  with 
others  the  participation  of  the  senate  in  some  of  those 
powers.  With  some  the  powers  of  the  judiciary  were 
far  too  extensive  ;  with  others  the  power  to  make  trea- 
ties even  with  the  consent  of  two  thirds  of  the  senate. 
With  some  the  power  to  keep  up  a  standing  army  was 
a  sure  introduction  to  despotism  ;  with  others  the  pow- 
er over  the  militia.  With  some  the  paramount  au- 
thority of  the  constitution,  treaties,  and  laws  of  the 

Abr.  15 


114  CONSTITUTION  OF  THE  U.  STATES.       [bOQK  III. 

United  States  was  a  dangerous  feature ;  with  others 
the  small  number  composing  the  senate  and  the  house 
of  representatives  was  an  alarming  and  corrupting 
evil. 

^  144.  Another  class  of  objections  urged  against  the 
constitution  was  founded  upon  its  deficiencies  and 
omissions.  It  cannot  be  denied,  that  some  of  the  ob- 
jections on  this  head  were  well  taken,  and  that  there 
was  a  fitness  in  incorporating  some  provision  on  the 
subject  into  the  fundamental  articles  of  a  free  govern- 
ment. There  were  others  again,  w^hich  might  fairly 
enough  be  left  to  the  legislative  discretion,  and  to  the 
natural  influences  of  the  popular  voice  in  a  republican 
form  of  government.  There  w^ere  others  again  so 
doubtful,  both  in  principle  and  policy,  that  they  might 
properly  be  excluded  from  any  system  aiming  at  per- 
manence in  its  securities  as  well  as  in  its  foundations. 

§  145.  Among  the  defects  which  were  enumerated, 
none  attracted  more  attention,  or  were  urged  with  more 
zeal,  than  the  want  of  a  distinct  bill  of  rights,  which 
should  recognise  the  fundamental  principles  of  a  free 
republican  government,  and  the  right  of  the  people  to 
the  enjoyment  of  life,  liberty,  property,  and  the  pursuit 
of  happiness. 

§  146.  Besides  these,  there  were  other  defects  re- 
lied on,  such  as  the  w^ant  of  a  suitable  provision  for  a 
rotation  in  office,  to  prevent  persons  enjoying  them  for 
life  ;  the  want  of  an  executive  council  for  the  president ; 
the  want  of  a  provision  limiting  the  duration  of  standing 
armies  ;  the  want  of  a  clause  securing  to  the  people  the 
enjoyment  of  the  common  law ;  the  want  of  security 
for  proper  elections  of  public  officers ;  the  want  of  a 
prohibition  of  members  of  congress  holding  any  public 
offices,  and  of  judges  holding  any  other  offices  ;   and 


CH.  II.]        OBJECTIONS  TO  THE  CONSTITUTION.  115 

finally  the  want  of  drawing  a  clear  and  direct  line  be- 
tween the  powers  to  be  exercised  by  congress  and  by 
the  states. 

§  147.  Many  of  these  objections  found  their  way  into 
the  amendments,  which,  simultaneously  with  the  ratifi- 
cation, were  adopted  in  many  of  the  state  conventions. 
With  the  view  of  carrying  into  effect  the  popular  will, 
and  also  of  disarming  the  opponents  of  the  constitution 
of  all  reasonable  grounds  of  complaint,  congress,  at  its 
very  first  session,  took  into  consideration  the  amend- 
ments so  proposed  ;  and  by  a  succession  of  supplemen- 
tary articles  provided,  in  substance,  a  bill  of  rights,  and 
secured  by  constitutional  declarations  most  of  the  other 
important  objects  thus  suggested.  These  articles  (in 
all,  twelve)  were  submitted  by  congress  to  the  states 
for  their  ratification  ;  and  ten  of  them  were  finally  rati- 
fied by  the  requisite  number  of  states ;  and  thus  be- 
came incorporated  into  the  constitution.  It  is  a  cu- 
rious fact,  however,  that  although  the  necessity  of  these 
amendments  had  been  urged  by  the  enemies  of  the 
constitution,  and  denied  by  its  friends,  they  encouiiter- 
ed  scarcely  any  other  opposition  in  the  state  legiGlatures, 
than  what  was  given  by  the  very  party,  which  had 
raised  the  objections.  The  friends  of  the  constitution 
generally  supported  them  upon  the  ground  of  a  large 
public  policy,  to  quiet  jealousies,  and  to  disarm  resent- 
ments. 


116    CONSTITUTION  OF  THE  U.  STATES.  [BOOK  III. 


CHAPTER  III. 

NATURE    OF   THE    CONSTITUTION  —  WHETHER   A 
COMPACT. 

^  148.  Having  thus  sketched  out  a  general  history 
of  the  origin  and  adoption  of  the  constitution  of  the 
United  States,  and  a  summary  of  the  principal  objec- 
tions and  difficulties,  which  it  had  to  encounter,  we 
are  at  length  arrived  at  the  point,  at  which  it  may  be 
proper  to  enter  upon  the  consideration  of  the  actual 
structure,  organization,  and  powers,  which  belong  to 
it 

§  149.  Before  doing  this,  however,  it  seems  neces- 
sary, in  the  first  place,  to  bestow  some  attention  upon 
several  points,  which  have  attracted  a  good  deal  of  dis- 
cussion, and  which  are  preliminary  in  their  own  nature ; 
and  in  the  next  place  to  consider,  what  are  the  true 
rules  of  interpretation  belonging  to  the  instrument. 

^  150.  In  the  first  place,  what  is  the  true  nature  and 
import  of  the  instrument  7  Is  it  a  treaty,  a  convention, 
a  league,  a  contract,  or  a  compact  ?  Who  are  the  par- 
ties to  it  1  By  whom  was  it  made  ?  By  whom  was 
it  ratified  ?  What  are  its  obligations  ?  By  whom,  and 
in  what  manner  may  it  be  dissolved  ?  Who  are  to 
determine  its  validity  and  construction?  Who  are 
to  decide  upon  the  supposed  infractions  and  violations 
of  it?  These  are  questions  often  asked,  and  often 
discussed,  not  merely  for  the  purpose  of  theoretical 
speculation ;  but  as  matters  of  practical  importance, 
and  of  earnest  and  even  of  vehement  debate.  The 
answers  given  to  them  by  statesmen  and  jurists  are 


CH.  II.]      NATURE  OF  THE  CONSTITUTION.     117 

often  contradictory,  and  irreconcilable  with  each 
other ;  and  the  consequences,  deduced  from  the  views 
taken  of  some  of  them,  go  very  deep  into  the  foun- 
dations of  the  government  itself,  and  expose  it,  if 
not  to  utter  destruction,  at  least  to  evils,  which 
threaten  its  existence,  and  disturb  the  just  operation 
of  its  powers. 

^  151.  In  what  light,  then,  is  the  constitution  of  the 
United  States  to  be  regarded  7  Is  it  a  mere  compact, 
treaty,  or  confederation  of  the  states  composing  the 
Union,  or  of  the  people  thereof,  whereby  each  of  the 
several  states,  and  the  people  thereof,  have  respectively 
bound  themselves  to  each  other?  Or  is  it  a  form  of 
government,  which,  having  been  ratified  by  a  majority 
of  the  people  in  all  the  states,  is  obligatory  upon  them, 
as  the  prescribed  rule  of  conduct  of  the  sovereign  pow- 
er, to  the  extent  of  its  provisions  1 

^  152.  Let  us  consider,  in  the  first  place,  whether  it 
is  to  be  deemed  a  compact.  By  this,  we  do  not  mean 
an  act  of  solemn  assent  by  the  people  to  it,  as  a  form 
of  government,  (of  which  there  is  no  room  for  doubt ;) 
but  a  contract  imposing  mutual  obligations,  and  con- 
templating the  permanent  subsistence  of  parties  having 
an  independent  right  to  construe,  control,  and  judge  of 
its  obligations.  If  in  this  latter  sense  it  is  to  be  deemed 
a  compact,  it  must  be,  either  because  it  contains  on  its 
face  stipulations  to  that  effect,  or  because  it  is  necessa- 
rily implied  from  the  nature  and  objects  of  a  frame  of 
government. 

§  153.  There  is  nowhere  found  upon  the  face  of  the 
constitution  any  clause,  intimating  it  to  be  a  compact, 
or  in  anywise  providing  for  its  interpretation,  as  such. 
On  the  contrary,  the  preamble  emphatically  speaks  of 
it,  as  a  solemn  ordinance  and  establishment  of  govern- 


118         CONSTITUTION  OF  THE  U.  STATES.      [BOOK  III. 

ment.  The  language  is,  "  We,  the  people  of  the  Unit- 
ed States,  do  ordain  and  establish  this  constitution  for 
the  United  States  of  America."  The  people  do  ordain 
and  establish,  not  contract  and  stipulate  with  each  other. 
The  people  of  the  United  States,  not  the  distinct  people 
of  a  particular  state  with  the  people  of  the  other  states. 
The  people  ordain  and  establish  a  "  constitution,^^  not  a 
"  confederation,''^  The  distinction  between  a  constitu- 
tion and  a  confederation  is  well  known,  and  understood. 
The  latter,  or  at  least  a  pure  confederation,  is  a  mere 
treaty  or  league  between  independent  states,  and  binds 
no  longer,  than  during  the  good  pleasure  of  each.  It 
rests  forever  in  articles  of  compact,  where  each  is,  or 
may  be  the  supreme  judge  of  its  own  rights  and  duties. 
The  former  is  a  permanent  form  of  government,  where 
the  powers,  once  given,  are  irrevocable,  and  cannot 
be  resumed  or  withdrawn  at  pleasure.  Whether  formed 
by  a  single  people,  or  by  different  societies  of  people, 
in  their  political  capacity,  a  constitution,  though  origin- 
ating in  consent,  becomes,  when  ratified,  obligatory,  as 
a  fundamental  ordinance  or.  law.  The  constitution  of 
a  confederated  republic,  that  is,  of  a  national  republic, 
formed  of  several  states,  is,  or  at  least  may  be,  not  less 
an  irrevocable  form  of  government,  than  the  constitu- 
tution  of  a  state  formed  and  ratified  by  the  aggregate  of 
the  several  counties  of  the  state. 

§  154.  If  it  had  been  the  design  of  the  framers  of  the 
constitution  or  of  the  people,  who  ratified  it,  to  consider 
it  a  mere  confederation,  resting  on  treaty  stipulations,  it 
is  difficult  to  conceive,  that  the  appropriate  terms  should 
not  have  been  found  in  it.  The  United  States  were 
no  strangers  to  compacts  of  this  nature.  They  had 
subsisted  to  a  limited  extent  before  the  revolution.  The 
articles  of  confederation,  though  in  some  few  respects 


CH.  III.]       NATURE    OF   THE    CONSTITUTION.  119 

national,  were  mainly  of  a  pure  federative  character, 
and  were  treated  as  stipulations  between  states,  for 
many  purposes  independent  and  sovereign.  And  yet, 
(as  has  been  already  seen,)  it  was  deemed  a  poUtical 
heresy  to  maintain,  that  under  it  any  state  had  a  right 
to  withdraw  from  it  at  pleasure,  and  repeal  its  opera- 
tion ;  and  that  a  party  to  the  compact  had  a  right  to 
revoke  that  compact. 

§  155.  But  that,  which  would  seem  conclusive  on 
the  subject,  (as  has  been  already  stated,)  is  the  very 
language  of  the  constitution  itself,  declaring  it  to  be  a 
supreme  fundamental  law,  and  to  be  of  judicial  obliga- 
tion, and  recognition  in  the  administration  of  justice. 
"This  constitution,"  says  the  sixth  article,  "and  the 
laws  of  the  United  States,  which  shall  be  made  in  pur- 
suance thereof,  and  all  treaties  made,  or  which  shall  be 
made  under  the  authority  of  the  United  States,  shall  he 
the  supreme  law  of  the  land ;  and  the  judges  in  every 
state  shall  be  bound  thereby,  anij  thing  in  the  constitu- 
tion or  laws  of  any  state  to  the  contrary  notwithstand- 
ing." If  it  is  the  supreme  law,  how  can  the  people  of 
any  state,  either  by  any  form  of  its  own  constitution,  or 
laws,  or  other  proceedings,  repeal,  or  abrogate,  or  sus- 
pend it  1 

§  156.  But  if  the  language  of  the  constitution  were 
less  explicit  and  irresistible,  no  other  inference  could 
be  correctly  deduced  from  a  view  of  the  nature  and 
objects  of  the  instrument.  The  design  is  to  establish  a 
form  of  government.  This,  of  itself,  imports  legal  obli- 
gation, permanence,  and  uncontrollability  by  any,  but 
the  authorities  authorized  to  alter,  or  abolish  it.  The 
object  was  to  secure  the  blessings  of  liberty  to  the 
people,  and  to  their  posterity.  The  avowed  intention 
was  to  supercede  the  old  confederation,  and  substitute 


120  CONSTITUTION  OP  THE  U.  STATES.    [bOOK  III. 

in  its  place  a  new  form  of  government.  We  have  seen, 
that  the  inefficiency  of  the  old  confederation  forced  the 
states  to  surrender  the  league  then  existing,  and  to 
establish  a  national  constitution.  The  convention  also, 
which  framed  the  constitution,  declared  this  in  the  let- 
ter accompanying  it.  "  It  is  obviously  impracticable  in 
the  federal  government  of  these  states,"  says  that  letter, 
"to  secure  all  rights  of  independent  sovereignty  to  each, 
and  yet  provide  for  the  interest  and  safety  of  all.  In- 
dividuals entering  into  society  must  give  up  a  share  of 
Uberty  to  preserve  the  rest."  "  In  all  our  deliberations 
on  this  subject,  we  kept  steadily  in  our  view  that,  which 
I  appeared  to  us  the  greatest  interest  of  every  true 
/American,  the  consolidation  of  our  Union,  in  which  is 
involved  our  prosperity,  felicity,  safety,  perhaps  our 
national  existence."  Could  this  be  attained  consist- 
ently with  the  notion  of  an  existing  treaty  or  confede- 
racy, which  each  at  its  pleasure  was  at  liberty  to  dis- 
solve 1 

^  157.  It  is  also  historically  known,  that  one  of  the 
objections  taken  by  the  opponents  of  the  constitution 
was,  "  that  it  is  not  a  confederation  of  the  states,  but  a 
government  of  individuals."  It  was,  nevertheless,  in 
the  solemn  instruments  of  ratification  by  the  people  of 
the  several  states,  assented  to,  as  a  constitution.  And 
although  many  declarations  of  rights,  many  propositions 
of  amendments,  and  many  protestations  of  i  eserved 
powers,  are  to  be  found  accompanying  the  ratifications 
of  the  various  conventions,  sufficiently  evincive  of  the 
extreme  caution  and  jealousy  of  those  bodies,  and  of 
the  people  at  large,  it  is  remarkable,  that  there  is  no- 
where to  be  found  the  slightest  allusion  to  the  instru- 
ment, as  a  confederation  or  compact  of  states  in  their 
sovereign  capacity,  and  no  reservation  of  any  right,  on 


CH.  III.]       NATURE    OF    THE    CONSTITUTION.  121 

the  part  of  any  state,  to  dissolve  its  connexion,  or  to 
abrogate  its  assent,  or  to  suspend  the  operations  of  the 
constitution,  as  to  itself. 

§  158.  So  that  there  is  very  strong  negative  testi-^ 
mony  against  the  notion  of  its  being  a  compact  or  con- 
federation, founded  upon  the  known  history  of  the) 
times,  and  the  acts  of  ratification,  as  well  as  upon  the 
antecedent  articles  of  confederation.  The  latter  pur- 
ported on  their  face  to  be  a  mere  confederacy.  The 
language  of  the  third  article  was,  "The  said  states 
hereby  severally  enter  into  a  firm  league  of  friendship 
with  each  other  for  their  common  defence,  &c.  binding 
themselves  to  assist  each  other."  And  the  ratification 
was  by  delegates  of  the  state  legislatures,  who  solemn- 
ly plighted  and  engaged  the  faith  of  their  respective 
constituents,  that  they  should  abide  by  the  determina- 
tion of  the  United  States  in  congress  assembled  on  all 
questions,  which  by  the  said  confederation,  are  submit- 
ted to  them ;  and  that  the  articles  thereof  should  be 
inviolably  observed  by  the  states  they  respectively 
represented. 

§  159.  It  is  not  unworthy  of  observation,  that  in  the 
debates  of  the  various  conventions  called  to  examine 
and  ratify  the  constitution,  this  subject  did  not  pass 
without  discussion.  The  opponents,  on  many  occa- 
sions, pressed  the  objection,  that  it  was  a  consolidated 
government,  and  contrasted  it  with  the  confederation. 
None  of  its  advocates  pretended  to  deny,  that  its  de-  \ 
sign  was  to  establish  a  national  government,  as  contra- 
distinguished from  a  mere  league  or  treaty,  however 
they  might  oppose  the  suggestion,  that  it  w^as  a  con- 
solidation of  the  states. 

§  160.  The  cardinal  conclusion,  for  which  this  doc- 
trine of  a  compact  has  been,  with  so  much  ingenuity 

Ahr.  16 


122         CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III* 

and  ability,  forced  into  the  language  of  the  constitution, 
(for  the  latter  no  where  alludes  to  it,)  is  avowedly 
to  establish,  that  in  construing  the  constitution,  there  is 
no  common  umpire ;  but  that  each  state,  nay  each  de- 
partment of  the  government  of  each  state,  is  the  supreme 
judge  for  itself,  of  the  powers,  and  rights,  and  duties, 
arising  under  that  instrument. 

^  161.  But  if  it  were  admitted,  that  the  constitution 
is  a  compact,  the  conclusion,  that  there  is  no  common 
arbiter,  would  neither  be  a  necessary,  nor  a  natural  con- 
clusion from  that  fact  standing  alone.  To  decide  upon 
the  point,  it  would  still  behove  us  to  examine  the  very 
terms  of  the  constitution,  and  the  delegation  of  powers 
under  it.  It  would  be  perfectly  competent  even  for 
confederated  states  to  agree  upon,and  delegate  authority 
to  construe  the  compact  to  a  common  arbiter.  The 
people  of  the  United  States  had  an  unquestionable 
right  to  confide  this  power  to  the  government  of  the 
United  States,  or  to  any  department  thereof,  if  they 
chose  so  to  do.  The  question  is,  whether  they  have 
done  it.  If  they  have,  it  becomes  obligatory  and  bind- 
ing upon  all  the  states. 

^  1 62.  It  is  not,  then,  by  artificial  reasoning  founded 
upon  theory,  but  upon  a  careful  survey  of  the  language 
of  the  constitution  itself,  that  we  are  to  interpret  its 
powers,  and  its  obligations.  We  are  to  treat  it,  as  it 
purports  on  its  face  to  be,  as  a  constitution  of  gov- 
ernment ;  and  we  are  to  reject  all  other  appellations, 
and  definitions  of  it,  such,  as  that  it  is  a  compact,  espe- 
cially as  they  may  mislead  us  into  false  constructions 
and  glosses,  and  can  have  no  tendency  to  instruct  us 
in  its  real  objects. 


CH.  IV.]  FINAL    INTERPRETER.  123 


CHAPTER  IV. 

WHO   IS  THE   FINAL  JUDGE   OR  INTERPRETER  IN  CON- 
STITUTIONAL CONTROVERSIES. 

^  163.  The  consideration  of  the  question,  whether 
the  constitution  has  made  provision  for  any  common 
arbiter  to  construe  its  powers  and  obligations,  would 
properly  find  a  place  in  the  analysis  of  the  different 
clauses  of  that  instrument.  But,  as  it  is  immediately 
connected  with  the  subject  before  us,  it  seems  expedi- 
ent in  this  place  to  give  it  a  deliberate  attention. 

^  164.  In  order  to  clear  the  question  of  all  minor 
points,  which  might  embarrass  us  in  the  discussion,  it  is 
necessary  to  suggest  a  few  preliminary  remarks.  The 
constitution,  contemplating  the  grant  of  limited  powers, 
and  distributing  them  among  various  functionaries,  and 
the  state  governments,  and  their  functionaries,  being 
also  clothed  with  limited  powers,  subordinate  to  those 
granted  to  the  general  government,  whenever  any 
question  arises,  as  to  the  exercise  of  any  power  by  any 
of  these  functionaries  under  the  state,  or  federal  gov- 
ernment, it  is  of  necessity,  that  such  functionaries  must, 
in  the  first  instance,  decide  upon  the  constitutionality 
of  the  exercise  of  such  power.  It  may  arise  in  the 
course  of  the  discharge  of  the  functions  of  any  one,  or 
of  all,  of  the  great  departments  of  government,  the  ex- 
ecutive, the  legislative,  and  the  judicial.  The  ofliicers 
of  each  of  these  departments  are  equally  bound  by 
their  oaths  of  office  to  support  the  constitution  of  the 
United  States,  and  are  therefore  conscientiously  bound 
to  abstain  from  all  acts,  which  are  inconsistent  with  it. 
Whenever,  therefore,  they  are  required  to  act  m  a  case, 


124    CONSTITUTION  OF  THE  U.  STATES.  [BOOK  III. 

not  hitherto  settled  by  any  proper  authority,  these 
functionaries  must,  in  the  first  instance,  decide,  each 
for  himself,  whether,  consistently  with  the  constitu- 
tion, the  act  can  be  done.  If,  for  instance,  the  presi- 
dent is  required  to  do  any  act,  he  is  not  only  authoriz- 
ed, but  required,  to  decide  for  himself,  whether,  con- 
sistently with  his  constitutional  duties,  he  can  do  the 
act.  So,  if  a  proposition  be  before  congress,  every 
member  of  the  legislative  body  is  bound  to  examine, 
and  decide  for  himself,  whether  the  bill  or  resolution 
is  within  the  constitutional  reach  of  the  legislative 
powers  confided  to  congress.  And  in  many  cases  the 
decisions  of  the  executive  and  legislative  departments, 
thus  made,  become  final  and  conclusive,  being  from 
their  very  nature  and  character  incapable  of  revision. 
Thus,  in  measures  exclusively  of  a  political,  legislative, 
or  executive  character,  it  is  plain,  that  as  the  supreme 
authority,  as  to  these  questions,  belongs  to  the  legis- 
lative and  executive  departments,  they  cannot  be  re- 
examined elsewhere.  Thus,  congress  having  the 
power  to  declare  war,  to  levy  taxes,  to  appropriate 
money,  to  regulate  intercourse  and  commerce  with 
foreign  nations,  their  mode  of  executing  these  powers 
can  never  become  the  subject  of  re-examination  in 
any  other  tribunal.  So  the  power  to  make  treaties 
being  confided  to  the  president  and  senate,  when  a 
treaty  is  properly  ratified,  it  becomes  the  law  of  the 
land,  and  no  other  tribunal  can  gainsay  its  stipulations. 
Yet  cases  may  readily  be  imagined,  in  which  a  tax  may 
be  laid,  or  a  treaty  made,  upon  motives  and  grounds 
wholly  beside  the  intention  of  the  constitution.  The 
remedy,  however,  in  such  cases  is  solely  by  an  appeal 
to  the  people  at  the  elections  ;  or  by  the  salutary  pow- 
er of  amendment,  provided  by  the  constitution  itself. 


CH.    IV.]  FINAL    INTERPRETER.  125 

^  165.  But,  where  the  question  is  of  a  diflferent  na- 
ture, and  capable  of  judicial  inquiry  and  decision,  there 
it  admits  of  a  very  different  consideration.  The  de- 
cision then  made,  vi^hether  in  favour,  or  against  the 
constitutionality  of  the  act,  by  the  state,  or  by  the  na- 
tional authority,  by  the  legislature,  or  by  the  executive, 
being  capable,  in  its  own  nature,  of  being  brought  to 
the  test  of  the  constitution,  is  subject  to  judicial  revis- 
ion. It  is  in  such  cases,  as  we  conceive,  that  there  is  a 
final  and  common  arbiter  provided  by  the  constitution 
itself,  to  whose  decisions  all  others  are  subordinate  ; 
and  that  arbiter  is  the  supreme  judicial  authority  of 
the  courts  of  the  Union. 

§  166.  Let  us  examine  the  grounds,  on  which  this 
doctrine  is  maintained.  The  constitution  declares, 
(Art.  6,)  that  "  This  constitution^  and  the  laws  of  the 
United  States,  which  shall  be  made  in  pursuance  there- 
of, and  all  treaties,  &c.  shall  be  the  supreme  law  of  the 
land."  It  also  declares,  (Art.  3,)  that  "  The  judicial 
power  shall  extend  to  all  cases  in  law  and  equity,  aris- 
ing under  this  constitution,  the  laws  of  the  United 
States  and  treaties  made,  and  which  shall  be  made 
under  their  authority."  It  further  declares,  (Art.  3,) 
that  the  judicial  power  of  the  United  States  "  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts, 
as  the  congress  may,  from  time  to  time,  ordain  and  es- 
tablish." Here,  then,  we  have  express,  and  determi- 
nate provisions  upon  the  very  subject.  Nothing  is  im- 
perfect, and  nothing  is  left  to  implication.  The  con- 
stitution is  the  supreme  law  ;  the  judicial  power  ex- 
tends to  all  cases  arising  in  law  and  equity  under  it ; 
and  the  courts  of  the  United  States  are,  and,  in  the 
last  resort,  the  Supreme  Court  of  the  United  States  is, 
to  be  vested  with  this  judicial  power.     No  man  can 


126  CONSTITUTION    OF   THE    U.    STATES.    [BOOK  III. 

doubt  or  deny,  that  the  power  to  construe  the  consti- 
tution is  a  judicial  power.  The  power  to  construe  a 
treaty  is  clearly  so,  when  the  case  arises  in  judgment 
in  a  controversy  between  individuals.  The  like  prin- 
ciple must  apply,  where  the  meaning  of  the  constitu- 
tion arises  in  a  judicial  controversy  ;  for  it  is  an  ap- 
propriate function  of  the  judiciary  to  construe  laws. 
If,  then,  a  case  under  the  constitution  does  arise,  if  it 
is  capable  of  judicial  examination  and  decision,  we 
see,  that  the  very  tribunal  is  appointed  to  make  the 
decision.  The  only  point  left  open  for  controversy  is, 
whether  such  decision,  when  made,  is  conclusive,  and 
binding  upon  the  states,  and  the  people  of  the  states. 
The  reasons,  why  it  should  be  so  deemed,  will  now  be 
submitted. 

^167.  In  the  first  place,  the  judicial  power  of  the 
United  States  rightfully  extending  to  all  such  cases, 
its  judgment  becomes  ipso  facto  conclusive  between 
the  parties  before  it,  in  respect  to  the  points  decided, 
unless  some  mode  be  pointed  out  by  the  constitution, 
in  which  that  judgment  may  be  revised.  No  such 
mode  is  pointed  out.  Congress  is  vested  with  ample 
authority  to  provide  for  the  exercise  by  the  Supreme 
Court  of  appellate  jurisdiction  from  the  decisions  of  all 
inferior  tribunals,  whether  state  or  national,  in  cases 
within  the  purview  of  the  judicial  power  of  the  United 
States  ;  but  no  mode  is  provided,  by  which  any  su- 
perior tribunal  can  re-examine,  what  the  Supreme 
Court  has  itself  decided.  Ours  is  emphatically  a  gov- 
ernment of  laws,  and  not  of  men  ;  and  judicial  decis- 
ions of  the  highest  tribunal,  by  the  known  course  of 
the  common  law,  are  considered,  as  establishing  the 
true  construction  of  the  laws,  which  are  brought  into 
controversy  before  it.     The  case  is  not  alone  consid- 


CH.  IV.]  FINAL    INTERPRETER.  127 

ered  as  decided  and  settled ;  but  the  principles  of  the 
decision  are  held,  as  precedents  and  authority,  to  bind 
future  cases  of  the  same  nature.  This  is  the  constant 
practice  under  our  whole  system  of  jurisprudence. 
Our  ancestors  brought  it  with  them,  when  they  first 
emigrated  to  this  country  ;  and  it  is,  and  always  has 
been  considered,  as  the  great  security  of  our  rights, 
our  liberties,  and  our  property.  It  is  on  this  account, 
that  our  law  is  justly  deemed  certain,  and  founded  in 
permanent  principles,  and  not  dependent  upon  the  ca- 
price, or  will  of  particular  judges.  A  more  alarming 
doctrine  could  not  be  promulgated  by  any  American 
court,  than  that  it  was  at  liberty  to  disregard  all  for- 
mer rules  and  decisions,  and  to  decide  for  itself,  with- 
out reference  to  the  settled  course  of  antecedent  prin- 
ciples. 

^  168.  This  known  course  of  proceeding,  this  settled 
habit  of  thinking,  this  conclusive  effect  of  judicial  adju- 
dications, was  in  the  full  view  of  the  framers  of  the  con- 
stitution. It  was  recognized,  and  enforced  in  every 
state  in  the  Union  ;  and  a  departure  from  it  would  have 
been  justly  deemed  an  approach  to  tyranny  and  arbitrary 
power,  to  the  exercise  of  mere  discretion,  and  to  the 
abandonment  of  all  the  just  checks  upon  judicial  author- 
ity. It  would  seem  impossible,  then,  to  presume,  if 
the  people  intended  to  introduce  a  new  rule  in  respect 
to  the  decisions  of  the  Supreme  Court,  and  to  limit  the 
nature  and  operations  of  their  judgments  in  a  manner 
wholly  unknown  to  the  common  law,  and  to  our  exist- 
ing jurisprudence,  that  some  indication  of  that  inten- 
tion should  not  be  apparent  on  the  face  of  the  consti- 
tution. We  find,  (Art.  4.)  that  the  constitution  has 
declared,  that  full  faith  and  credit  shall  be  given  in 
each  state  to  the  judicial  proceedings  of  every  other 


128     CONSTITUTION  OF  THE  U.  STATES.   [BOOK  III. 

State.  But  no  like  provision  has  been  made  in  respect 
to  the  judgments  of  the  courts  of  the  United  States, 
because  they  were  plainly  supposed  to  be  of  paramount 
and  absolute  obligation  throughout  all  the  states.  If 
the  judgments  of  the  Supreme  Court  upon  constitu- 
tional questions  are  conclusive  and  binding  upon  the 
citizens  at  large,  must  they  not  be  equally  conclusive 
upon  the  states  ?  If  the  states  are  parties  to  that  in- 
strument, are  not  the  people  of  the  states  also  parties  ? 
§  169.  In  the  next  place,  as  the  judicial  power 
extends  to  all  cases  arising  under  the  constitution, 
and  that  constitution  is  declared  to  be  the  supreme 
law,  that  supremacy  would  naturally  be  construed  to 
extend,  not  only  over  the  citizens,  but  over  the  states. 
This,  however,  is  not  left  to  implication,  for  it  is  de- 
clared to  be  the  supreme  law  of  the  land,  "  anything 
in  the  constitution  or  laws  of  any  state  to  the  contrary 
notwithstanding."  The  people  of  any  state  cannot, 
then,  by  any  alteration  of  their  state  constitution,  de- 
stroy, or  impair  that  supremacy.  How,  then,  can  they 
do  it  in  any  other  less  direct  manner  ?  Now,  it  is  the 
proper  function  of  the  judicial  department  to  interpret 
laws,  and  by  the  very  terms  of  the  constitution  to  inter- 
pret the  supreme  law.  Its  interpretation,  then,  becomes 
obligatory  and  conclusive  upon  all  the  departments  of 
the  federal  government,  and  upon  the  whole  people, 
so  far  as  their  rights  and  duties  are  derived  from,  or 
affected  by  that  constitution.  If  then  all  the  depart 
ments  of  the  national  government  may  rightfully  exer- 
cise all  the  powers,  which  the  judicial  department  has, 
by  its  interpretation,  declared  to  be  granted  by  the  con- 
stitution ;  and  are  prohibited  from  exercising  those, 
which  are  thus  declared  not  to  be  granted  by  it,  would 
it  not  be  a  solecism  to  hold,  notwithstanding,  that  such 


CH.  IV.J  FINAL    INTERPRETER.  129 

rightful  exercise  should  not  be  deemed  the  supreme 
law  of  the  land,  and  such  prohibited  powers  should 
still  be  deemed  granted  ?  It  would  seem  repugnant 
to  the  first  notions  of  justice,  that  in  respect  to  the 
same  instrument  of  government,  different  powers,  and 
duties,  and  obligations  should  arise,  and  different  rules 
should  prevail,  at  the  same  time  among  the  governed, 
from  a  right  of  interpreting  the  same  words  (manifestly 
used  in  one  sense  only)  in  different,  nay,  in  opposite 
senses.  If  there  ever  was  a  case,  in  which  uniformity 
of  interpretation  might  well  be  deemed  a  necessary 
postulate,  it  would  seem  to  be  that  of  a  fundamental 
law  of  a  government.  It  might  otherwise  follow,  that 
the  same  individual,  as  a  magistrate,  might  be  bound 
by  one  rule,  and  in  his  private  capacity  by  another,  at 
the  very  same  moment. 

^  170.  There  would  be  neither  wisdom  nor  policy 
in  such  a  doctrine  ;  and  it  would  deliver  over  the 
constitution  to  interminable  doubts,  founded  upon 
the  fluctuating  opinions  and  characters  of  those,  who 
should,  from  time  to  time,  be  called  to  administer  it. 
Such  a  constitution  could,  in  no  just  sense,  be  deemed 
a  law,  much  less  a  supreme  or  fundamental  law.  It 
would  have  none  of  the  certainty  or  universality,  which 
are  the  proper  attributes  of  such  a  sovereign  rule.  It 
would  entail  upon  us  all  the  miserable  servitude,  which 
has  been  deprecated,  as  the  result  of  vague  and  uncer- 
tain jurisprudence.  Miser  a  est  servitus,  uhi  jus  est 
vagum  aut  incertum.  It  would  subject  us  to  constant 
dissensions,  and  perhaps  to  civil  broils,  from  the  perpet- 
ually recurring  conflicts  upon  constitutional  questions. 
On  the  other  hand,  the  worst,  that  could  happen  from 
a  wrong  decision  of  the  judicial  department,  would  be, 
that  it  might  require  the  interposition  of  congress,  or, 

Abr.  IT 


130  CONSTITUTION    OF    THE    U.    STATES.     [boOK  UI. 

in  the  last  resort,  of  the  amendatory  power  of  the  states, 
to  redress  the  grievance. 

§  171.  We  find  the  power  to  construe  the  con- 
stitution expressly  confided  to  the  judicial  depart- 
ment, without  any  limitation  or  qualification,  as  to  its 
conclusiveness.  Who,  then,  is  at  liberty,  by  general 
implications,  not  from  the  terms  of  the  instrument,  but 
from  mere  theory,  and  assumed  reservations  of  sove- 
reign right,  to  insert  such  a  limitation  or  qualification  ? 
We  find,  that  to  produce  uniformity  of  interpretation, 
and  to  preserve  the  constitution,  as  a  perpetual  bond 
of  union,  a  supreme  arbiter  or  authority  of  construing 
is,  if  not  absolutely  indispensable,  at  least,  of  the 
highest  possible  practical  utility  and  importance. 
Who,  then,  is  at  liberty  to  reason  down  the  terms  of 
the  constitution,  so  as  to  exclude  their  natural  force 
and  operation  ? 

^  172.  We  find,  that  it  is  the  known  course  of 
the  judicial  department  of  the  several  states  to  de- 
cide in  the  last  resort  upon  all  constitutional  questions 
arising  in  judgment ;  and  that  this  has  always  been 
maintained  as  a  rightful  exercise  of  authority,  and  con- 
clusive upon  the  whole  state.  As  such,  it  has  been 
cpnstantly  approved  by  the  people,  and  never  with- 
drawn from  the  courts  by  any  amendment  of  their  con- 
stitutions, when  the  people  have  been  called  to  revise 
them.  We  find,  that  the  people  of  the  several  states 
have  constantly  relied  upon  this  last  judicial  appeal, 
as  the  bulwark  of  their  state  rights  and  liberties  ;  and 
that  it  is  in  perfect  consonance  with  the  whole  struc- 
ture of  the  jurisprudence  of  the  common  law.  Under 
such  circumstances,  is  it  not  most  natural  to  presume, 
that  the  same  rule  was  intended  to  be  applied  to  the 
constitution  of  the  United   States?     And  when  we 


r 


CH.   IV.]  FINAL    INTERPRETER.  131 


find,  that  the  judicial  department  of  the  United  States 
is  actually  entrusted  with  a  like  power,  is  it  not  an 
irresistible  presumption,  that  it  had  the  same  object, 
and  was  to  have  the  same  universally  conclusive  effect? 
Even  under  the  confederation,  an  instrument  framed 
with  infinitely  more  jealousy  and  deference  for  state 
rights,  the  judgment  of  the  judicial  department  ap- 
pointed to  decide  controversies  between  states  was 
declared  to  be  final  and  conclusive  ;  and  the  appellate 
power  in  other  cases  was  held  to  overrule  all  state 
decisions  and  state  legislation. 

^  173.  If,  then,  reasoning  from  the  terms  of  the 
constitution,  and  the  known  principles  of  our  jurispru- 
dence, the  appropriate  conclusion  is,  that  the  judicial 
department  of  the  United  States  is,  in  the  last  resort, 
the  final  expositor  of  the  constitution,  as  to  all  questions 
of  a  judicial  nature  ;  let  us  see,  in  the  next  place,  how 
far  this  reasoning  acquires  confirmation  from  the  past 
history  of  the  constitution,  and  the  practice  under  it. 

§  174.  That  this  view  of  the  constitution  was  taken 
by  its  framers  and  friends,  and  was  submitted  to  the 
people  before  its  adoption,  is  positively  certain.  The 
same  doctrine  was  constantly  avowed  in  the  state 
conventions,  called  to  ratify  the  constitution.  With 
some  persons  it  formed  a  strong  objection  to  the  con- 
stitution ;  with  others  it  was  deemed  vital  to  its  exis- 
tence and  value.  So,  that  it  is  indisputable,  that 
the  constitution  was  adopted  under  a  full  knowledge 
of  this  exposition  of  the  grant  of  power  to  the  judicial 
department. 

^  175.  This  is  not  all.  The  constitution  has 
now  been  in  full  operation  more  than  forty  years  ;  and 
during  this  period  the  Supreme  Court  has  constantly  ex- 
ercised this  power  of  final  interpretation  in  relation,  not 


132    CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

only  to  the  constitution,  and  laws  of  the  Union,  but  in 
relation  to  state  acts  and  state  constitutions  and  laws, 
so  far  as  they  have  affected  the  constitution,  and  laws, 
and  treaties  of  the  United  States.  Their  decisions  upon 
these  grave  questions  have  never  been  repudiated,  or 
impaired  by  congress.  No  state  has  ever  deliberately, 
or  forcibly  resisted  the  execution  of  the  judgments 
founded  upon  them ;  and  the  highest  state  tribunals 
have,  jvith  scarcely  a  single  exception,  acquiesced  in, 
and,  in  most  instances,  assisted  in  executing  them. 
During  the  same  period,  eleven  states  have  been  admit- 
ted into  the  Union,  under  a  full  persuasion,  that  the 
same  power  would  be  exerted  over  them.  Many  of 
the  states  have,  at  different  times  within  the  same  pe- 
riod, been  called  upon  to  consider,  and  examine  the 
grounds,  on  which  the  doctrine  has  been  maintained, 
at  the  solicitation  of  other  states,  which  felt,  that  it 
operated  injuriously,  or  might  operate  injuriously  upon 
their  interests.  A  great  majority  of  the  states, 
which  have  been  thus  called  upon  in  their  legislative 
capacities  to  express  opinions,  have  maintained  the 
correctness  of  the  doctrine,  and  the  beneficial  effects 
of  the  power,  as  a  bond  of  union,  in  terms  of  the  most 
unequivocal  nature.  Whenever  any  amendment  has 
been  proposed  to  change  the  tribunal,  and  substitute 
another  common  umpire  or  interpreter,  it  has  rarely 
received  the  concurrence  of  more  than  two  or  three 
states,  and  has  been  uniformly  rejected  by  a  great 
majority,  either  silently,  or  by  an  express  dissent. 
And  instances  have  occurred,  in  which  the  legislature 
of  the  same  state  has,  at  different  times,  avowed  oppo- 
site opinions,  approving  at  one  time,  what  it  had  denied, 
or  at  least  questioned  at  another.  So,  that  it  may  be 
asserted  with  entire  confidence,   that  for  forty  years 


CH.    IV.  FINAL    INTERPRETER.  133 

three  fourths  of  all  the  states  composing  the  Union  have 
expressly  assented  to,  or  silently  approved,  this  con- 
struction of  the  constitution,  and  have  resisted  every 
effort  to  restrict,  or  alter  it. 

^  176.  A  w^eight  of  public  opinion  among  the  peo- 
ple for  such  a  period,  uniformly  throvrn  into  one  scale 
so  strongly,  and  so  decisively,  in  the  midst  of  all  the 
extraordinary  changes  of  parties,  the  events  of  peace 
and  of  war,  and  the  trying  conflicts  of  public  policy 
and  state  interests,  is  perhaps  unexampled  in  the  his- 
tory of  all  other  free  governments.  1 1 affords,  as  sat- 
isfactory a  testimony  in  favor  of  the  just  and  safe 
operation  of  the  system,  as  can  well  be  imagined  ;  and, 
as  a  commentary  upon  the  constitution  itself,  it  is  as 
absolutely  conclusive,  as  any  ever  can  be,  and  affords 
the  only  escape  from  the  occurrence  of  civil  conflicts, 
and  the  delivery  over  of  the  subject  to  interminable 
disputes. 

^  177.  In  this  review  of  the  power  of  the  judi- 
cial department,  upon  a  question  of  its  supremacy  in  the 
interpretation  of  the  constitution,  it  has  not  been  thought 
necessary  to  rely  on  the  deliberate  judgments  of  that 
department  in  affirmance  of  it.  But  it  may  be  proper 
to  add,  that  the  judicial  department  has  not  only  con- 
stantly exercised  this  right  of  interpretation  in  the  last 
resort ;  but  its  whole  course  of  reasonings  and  opera- 
tions has  proceeded  upon  the  ground,  that,  once  made, 
the  interpretation  was  conclusive,  as  well  upon  the 
states,  as  upon  the  people. 


134    CONSTITUTION  OF  THE  U.  STATES.   [BOOK  III. 

CHAPTER  V. 

RULES    OF   INTERPRETATION. 

^  178.  In  our  future  commentaries  upon  the  con- 
stitution we  shall  treat  it,  then,  as  it  is  denominated 
in  the  instrument  itself,  as  a  constitution  of  govern- 
ment, ordained  and  established  by  the  people  of  the 
United  States  for  themselves  and  their  posterity.  They 
have  declared  it  the  supreme  law  of  the  land.  They 
have  made  it  a  limited  government.  They  have  defin- 
ed its  authority.  They  have  restrained  it  to  the  ex- 
ercise of  certain  powers,  and  reserved  all  others  to  the 
states  or  to  the  people.  It  is  a  popular  government.  - 
Those,  who  administer  it,  are  responsible  to  the  people. 
It  is  as  popular,  and  just  as  much  emanating  from  the 
people,  as  the  state  governments.  It  is  created  for  one 
purpose  ;  the  state  governments  for  another.  It  may 
be  altered,  and  amended,  and  abolished  at  the  will  of 
the  people.  In  short,  it  was  made  by  the  people, 
made  for  the  people,  and  is  responsible  to  the  people. 

^  179.  In  this  view  of  the  matter,  let  us  now  proceed 
to  consider  the  rules,  by  which  it  ought  to  be  interpre- 
ted; for  if  these  rules  are  correctly  laid  down,  it  will  save 
us  from  many  embarrassments  in  examining  and  defin- 
ing its  powers.  Much  of  the  difficulty,  which  has  aris- 
en in  all  the  public  discussions  on  this  subject,  has  had 
its  origin  in  the  want  of  some  uniform  rules  of  interpre- 
tation, expressly  or  tacitly  agreed  on  by  the  disputants. 
Very  different  doctrines  on  this  point  have  been  adopt- 
ed by  different  commentators ;  and  not  unfrequently 
very  different  language  held  by  the  same  parties  at 
different  periods.     In  short,  the  rules  of  interpretation 


CH.  v.]  RULES    OF    INTERPRETATION.  135 

have  often  been  shifted  to  suit  the  emergency  ;  and  the 
passions  and  prejudices  of  the  day,  or  the  favor  and 
odium  of  a  particular  measure,  have  not  unfrequently 
furnished  a  mode  of  argument,  which  w^ould,  on  the 
one  hand,  leave  the  constitution  crippled  and  inani- 
mate, or,  on  the  other  hand,  give  it  an  extent  and  elas- 
ticity, subversive  of  all  rational  boundaries. 

§  180.  Let  us,  then,  endeavor  to  ascertain,  what 
are  the  true  rules  of  interpretation  applicable  to  the 
constitution ;  so  that  we  may  have  some  fixed  stan-  f 
dard,  by  which  to  measure  its  powers,  and  limit  its 
prohibitions,  and  guard  its  obligations,  and  enforce  its 
securities  of  our  rights  and  liberties. 

§  181.  I.  The  first  and  fundamental  rule  in  the 
interpretation  of  all  instruments  is,  to  construe  them^ 
according  to  the  sense  of  the  terms,  and  the  intention 
of  the  parties.  Mr  Justice  Blackstone  has  remarked, 
that  the  intention  of  a  law  is  to  be  gathered  from  the 
words,  the  context,  the  subject-matter,  the  effects  and 
consequence,  or  the  reason  and  spirit  of  the  law.  He 
goes  on  to  justify  the  remark  by  stating,  that  words  are 
generally  to  be  understood  in  their  usual  and  most 
known  signification,  not  so  much  regarding  the  pro- 
priety of  grammar,  as  their  general  and  popular  use ; 
that  if  words  happen  to  be  dubious,  their  meaning  may 
be  established  by  the  context,  or  by  comparing  them 
with  other  words  and  sentences  in  the  same  instru- 
ment ;  that  illustrations  may  be  further  derived  from 
the  subject-matter,  with  reference  to  which  the  expres- 
sions are  used  ;  that  the  effect  and  consequence  of  a 
particular  construction  is  to  be  examined,  because,  if 
a  literal  meaning  would  involve  a  manifest  absurdity, 
it  ought  not  to  be  adopted ;  and  that  the  reason  and 
spirit  of  the  law,  or  the  causes,  which  led  to  its  enact- 


136    CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

ment,  are  often  the'best  exponents  of  the  words,  and 
limit  their  application. 

^  182.  Where  the  words  are  plain  and  clear,  and 
the  sense  distinct  and  peri'ect  arising  on  them,  there  is 
generally  no  necessity  to  have  recourse  to  other  means 
of  interpretation.  It  is  only,  when  there  is  some  ambi- 
guity or  doubt  arising  from  other  sources,  that  inter- 
pretation has  its  proper  office.  There  may  be  obscu- 
rity, as  to  the  meaning,  from  the  doubtful  character  of 
the  words  used,  from  other  clauses  in  the  same  instru- 
ment, or  from  an  incongruity  or  repugnancy  between 
the  words,  and  the  apparent  intention  derived  from  the 
whole  structure  of  the  instrument,  or  its  avowed  object. 
In  all  such  cases  interpretation  becomes  indispensable. 

^  183.  II.  In  construing  the  constitution  of  the 
United  States,  we  are,  in  the  first  instance,  to  consider, 
what  are  its  nature  and  objects,  its  scope  and  design, 
as  apparent  from  the  structure  of  the  instrument,  view- 
ed as  a  whole,  and  also  viewed  in  its  component  parts. 
Where  its  words  are  plain,  clear,  and  determinate, 
they  require  no  interpretation  ;  and  it  should,  there- 
fore, be  admitted,  if  al  all,  with  great  caution,  and  only 
from  necessity,  either  to  escape  some  absurd  conse- 
quence, or  to  guard  against  some  fatal  evil.  Where 
the  words  admit  of  two  senses,  each  of  which  is  con- 
formable to  common  usage,  that  sense  is  to  be  adopted, 
which,  without  departing  from  the  literal  import  of 
the  words,  best  harmonizes  with  the  nature  and  objects, 
the  scope  and  design  of  the  instrument.  Where  the 
words  are  unambiguous,  but  the  provision  may  cover 
more  or  less  ground  according  to  the  intention,  which 
is  yet  subject  to  conjecture  ;  or  where  it  may  include 
in  its  general  terms  more  or  less,  than  might  seem 
dictated  by  the  general  design,  as  that  may  be  gathered 


CH.    v.]  RULES    OF    INTERPRETATION.  137 

from  other  parts  of  the  instrument,  there  is  much  more 
room  for  controversy ;  and  the  argument  from  incon- 
venience will  probably  have  different  influences  upon 
different  minds.  Whenever  such  questions  arise,  they 
will  probably  be  settled,  each  upon  its  own  peculiar 
grounds  ;  and  whenever  it  is  a  question  of  power,  it 
should  be  approached  with  infinite  caution,  and  affirm- 
ed only  upon  the  most  persuasive  reasons.  In  exam- 
ining the  constitution,  the  antecedent  situation  of  the 
country,  and  its  institutions,  the  existence  and  opera- 
tions of  the  state  governments,  the  powers  and  opera- 
tions of  the  confederation,  in  short  all  the  circumstan- 
ces, which  had  a  tendency  to  produce,  or  to  obstruct 
its  formation  and  ratification,  deserve  a  careful  atten- 
tion. Much,  also,  may  be  gathered  from  contempo- 
rary history,  and  contemporary  interpretation,  to  aid 
us  in  just  conclusions. 

§  184.  Contemporary  construction  is  properly  resort- 
ed to,  to  illustrate,  and  confirm  the  text,  to  explain  a 
doubtful  phrase,  or  to  expound  an  obscure  clause  ;  and 
in  proportion  to  the  uniformity  and  universality  of 
that  construction,  and  the  known  ability  and  talents 
of  those,  by  whom  it  was  given,  is  the  credit,  to  which 
it  is  entitled.  It  can  never  abrogate  the  text ;  it  can 
never  fritter  away  its  obvious  sense  ;  it  can  never  nar- 
row down  its  limitations  ;  it  can  never  enlarge  its  nat- 
ural boundaries. 

^  185.  And,  after  all,  the  most  unexceptionable 
source  of  collateral  interpretation  is  from  the  practical 
expositions  of  the  government  itself  in  its  various  de- 
partments upon  particular  questions,  discussed  and  set- 
tled upon  their  own  single  merits.  These  approach 
the  nearest  in  their  own  nature  to  judicial  expositions; 
and  have  the  same  general  recommendation,  that  be- 

Abr.  18 


138  CONSTITUTION    OF    THE    U.    STATES.      [bOOK    Ut. 

longs  to  the  latter.  They  are  decided  upon  solemn 
argument,  pro  re  naici,  upon  a  doubt  raised,  upon  a  lis 
mota,  upon  a  deep  sense  of  their  importance  and  diffi- 
culty, in  the  face  of  the  nation,  with  a  view  to  present 
action,  in  the  midst  of  jealous  interests,  and  by  men 
capable  of  urging,  or  repelling  the  grounds  of  argument, 
from  their  exquisite  genius,  their  comprehensive  learn- 
ing, or  their  deep  meditation  upon  the  absorbing 
topic.  How  light,  compared  with  these  means  of 
instruction,  are  the  private  lucubrations  of  the  closet, 
or  the  retired  speculations  of  ingenious  minds,  intent 
on  theory,  or  general  views,  and  unused  to  encounter 
a  practical  difficulty  at  every  step  ! 

§  186.  But  to  return  to  the  rules  of  interpretation, 
arising  ex  directo  from  the  text  of  the  constitution. 
And  first  the  rules  to  be  drawn  from  the  nature  of  the 
X  instrument.  (1.)  It  is  to  be  construed,  as  a/ramc,  or 
fundamental  laiv  of  government,  established  by  the 
PEOPLE  of  the  United  States,  according  to  their  own 
free  pleasure  and  sovereign  will.  In  this  respect  it  is 
in  no  wise  distinguishable  from  the  constitutions  of 
the  state  governments.  Each  of  them  is  established  by 
the  people  for  their  own  purposes,  and  each  is  founded 
on  their  supreme  authority.  The  powers,  which  are 
conferred,  the  restrictions,  which  are  imposed,  the 
authorities,  which  are  exercised,  the  organization  and 
distribution  thereof,  which  are  provided,  are  in  each 
case  for  the  same  object,  the  common  benefit  of  the 
govereed,  and  not  for  the  profit  or  dignity  of  the 
rulers. 

^  187.  If  this  be  the  true  view  of  the  subject,  the 
constitution  of  the  United  States  is  to  receive  as  favor- 
able a  construction,  as  those  of  the  states.  Neither  is 
to  be  construed  alone;  but  each  with  a  reference   to 


CH.  v.]  RULES    OF    INTERPRETATION.  139 

the  Other.     Each  belongs  to  the  same  system  of  gov- 
ernment ;  each  is  limited  in  its  powers  ;  and  within 
the  scope  of  its  powers  each  is  supreme.     Each,  by  the 
theory  of  our  government,  is  essential  to  the  existence 
and  due  preservation  of  the  powers  and  obligations  of 
the  other.     The  destruction  of  either  would  be  equal- 
ly calamitous,  since  it  would  involve  the  ruin  of  that 
beautiful  fabric  of  balanced  government,  which  has  been 
reared  with  so  much  care  and  wisdom,  and  in  which 
the  people  have  reposed  their  confidence,  as  the  truest 
safeguard  of  their  civil,  religious,  and  political  liber- 
ties.    The  exact  limits  of  the  powers,  confided  by  the 
people  to  each,  may  not  always  be  capable,  from  the 
inherent  difficulty  of  the  subject,  of  being  defined,  or 
ascertained  in  all  cases  with  perfect  certainty.     But 
the  lines  are  generally  marked  out  with  sufficient  broad- 
ness and  clearness ;  and  in  the  progress  of  the  devel- 
opement  of  the  peculiar  functions  of  each,  the  part  of 
true  wisdom  would  seem  to  be,  to  leave  in  every  prac- 
ticable direction  a  wide,  if  not  an  unmeasured,  distance 
between  the  actual  exercise  of  the  sovereignty  of  each. 
In  every  complicated  machine  slight  causes  may  disturb 
the   operations ;    and   it  is  often  more  easy  to  detect 
the  defects,  than  to  apply  a  safe  and  adequate  remedy. 
^  1 88.  IV.  From  the  foregoing  considerations  we 
deduce  the  conclusion,  that  as  a  frame  or  fundamental 
law  of  government,  (2.)  The  constitution  of  the  Uni- 
ted States  is  to  receive  a  reasonable  interpretation  of 
its  language,  and  its  powers,  keeping  in  view  the  ob- 
jects and  purposes,  for  which  those  powers  were  con- 
ferred.    By  a  reasonable  interpretation,  we  mean,  that 
in  case  the   words   are    susceptible  of  two  different 
senses,  the  one  strict,  the  other  more  enlarged,   that 
should  be  adopted,  which  is  most  consonant  with  the 


140        CONSTITUTION    OF    THE    U.    STATES.         [bOOK  III. 

apparent  objects  and  intent  of  the  constitution  ;  that 
which  will  give  it  efficacy  and  force,  as  a  government^ 
rather  than  that,  which  will  impair  its  operations,  and 
reduce  it  to  a  state  of  imbecility.  Of  course  we  do  not 
mean,  that  the  words  for  this  purpose  are  to  be  strained 
beyond  their  common  and  natural  sense  ;  but  keeping 
within  that  limit,  the  exposition  is  to  have  a  fair  and 
just  latitude,  so  as  on  the  one  hand  to  avoid  obvious 
mischief,  and  on  the  other  hand  to  promote  the  public 
good. 

^  189.  This  consideration  is  of  great  importance  in 
construing  a  frame  of  government ;  and  a  fortiori  a 
frame  of  government,  the  free  and  voluntary  insti- 
tution of  the  people  for  their  common  benefit,  secu- 
rity, and  happiness.  It  is  wholly  unlike  the  case  of 
a  municipal  charter,  or  a  private  grant,  in  respect  both 
to  its  means  and  its  ends.  When  a  person  makes  a 
private  grant  of  a  particular  thing,  or  of  a  license  to  do 
a  thing,  or  of  an  easement  for  the  exclusive  benefit  of 
the  grantee,  we  naturally  confine  the  terms,  however 
general,  to  the  objects  clearly  in  the  view  of  the  parties. 
But  even  in  such  cases,  doubtful  words,  within  the 
scope  of  those  objects,  are  construed  most  favorably 
for  the  grantee  ;  because,  though  in  derogation  of  the 
rights  of  the  grantor,  they  are  promotive  of  the  general 
rights  secured  to  the  grantee.  But,  where  the  grant 
enures,  solely  and  exclusively,  for  the  benefit  of  the 
grantor  himself,  no  one  would  deny  the  propriety  of 
giving  to  the  words  of  the  grant  a  benign  and  liberal 
interpretation.  In  cases,  however,  of  private  grants, 
the  objects  generally  are  few ;  they  are  certain ;  th^y 
are  limited  ;  they  neither  require,  nor  look  to  a  variety 
of  means  or  changes,  which  are  to  control,  or  modify 
either  the  end,  or  the  means. 


r 


I 


CH.    v.]  RULES    OF    IISTERPRETATION.  141 

^  190.  But  a  constitution  of  government,  founded 
by  the  people  for  themselves  and  their  posterity,  and 
for  objects  of  the  most  momentous  nature,  for  perpetual 
union,  for  the  establishment  of  justice,  for  the  general 
welfare,  and  for  a  perpetuation  of  the  blessings  of  lib- 
erty, necessarily  requires,  that  every  interpretation  of 
its  pov^ers  should  have  a  constant  reference  to  these 
objects.  No  interpretation  of  the  words,  in  which  those 
powers  are  granted,  can  be  a  sound  one,  which  narrows 
down  their  ordinary  import,  so  as  to  defeat  those  objects. 
That  would  be  to  destroy  the  spirit,  and  to  cramp  the 
letter.  It  has  been  justly  observed,  by  the  Supreme  ^ 
Court,  that  "the  constitution  unavoidably  deals  in  gen- 
eral language.  It  did  not  suit  the  purposes  of  the  peo- 
ple, in  framing  this  great  charter  of  our  liberties,  to  pro- 
vide for  minute  specification  of  its  powers,  or  to  declare 
the  means,  by  which  those  powers  should  be  carried  into 
execution.  It  was  foreseen,  that  it  would  be  a  perilous, 
and  difficult,  if  not  an  impracticable  task.  The  instru- 
ment was  not  intended  to  provide  merely  for  the  exi- 
gencies of  a  few  years  ;  but  was  to  endure  through  a 
long  lapse  of  ages,  the  events  of  which  were  locked  up 
in][the  inscrutable  purposes  of  Providence.  It  could 
not  be  foreseen,  what  new  changes  and  modifications 
of  power  might  be  indispensable  to  effectuate  the  gen- 
eral objects  of  the  charter;  and  restrictions  and  speci- 
fications, which  at  the  present  might  seem  salutary, 
might  in  the  end  prove  the  overthrow  of  the  system 
itself.  Hence  its  powers  are  expressed  in  general 
terms,  leaving  the  legislature,  from  time  to  time,  to 
adopt  its  own  means  to  effectuate  legitimate  objects, 
and  to  mould  and  model  the  exercise  of  its  powers,  as 
its  own  wisdom  and  the  public  interests  should  re- 
quire." Language  to  the  same  effect  will  be  found  in 
other  judgments  of  the  same  tribunal. 


142  CONSTITUTION    OF    THE    U.    STATES.     [bOOK  III 

§  191.  V.  Where  the  power  is  granted  in  general 
terms,  the  power  is  to  be  construed,  as  co-extensive 
with  the  terms,  unless  some  clear  restriction  upon  it 
is  deducible  from  the  context.  We  do  not  mean  to 
assert,  that  it  is  necessary,  that  such  restriction  should 
be  expressly  found  in  the  context.  It  will  be  sufficient, 
if  it  arise  by  necessary  implication.  But  it  is  not  suffi- 
cient to  show,  that  there  was,  or  might  have  been,  a 
sound  or  probable  motive  to  restrict  it.  A  restriction 
founded  on  conjecture  is  wholly  inadmissible.  The 
reason  is  obvious  :  the  text  was  adopted  by  the  people 
in  its  obvious,  and  general  sense.  We  have  no  means 
of  knowing,  that  any  particular  gloss,  short  of  this 
sense,  was  either  contemplated,  or  approved  by  the 
people  ;  and  such  a  gloss  might,  though  satisfactory 
in  one  state,  have  been  the  very  ground  of  objection 
in  another.  It  might  have  formed  a  motive  to  reject 
it  in  one,  and  to  adopt  it  in  another.  The  sense  of  a 
part  of  the  people  has  no  title  to  be  deemed  the  sense 
of  the  whole.  Motives  of  state  policy,  or  state  in- 
terest, may  properly  have  influence  in  the  question  of 
ratifying  it ;  but  the  constitution  itself  must  be  ex- 
pounded, as  it  stands  ;  and  not  as  that  policy,  or  that 
interest  may  seem  now  to  dictate.  We  are  to  construe, 
and  not  to  frame  the  instrument. 

^  1 92.  VI.  A  power,  given  in  general  terms,  is  not 
to  be  restricted  to  particular  cases,  merely  because  it 
may  be  susceptible  of  abuse,  and,  if  abused,  may  lead 
to  mischievous  consequences.  This  argument  is  often 
used  in  public  debate  ;  and  in  its  common  aspect  ad- 
dresses itself  so  much  to  popular  fears  and  prejudices, 
that  it  insensibly  acquires  a  weight  in  the  public  mind, 
to  which  it  is  no  wise  entitled.  The  argument  ab  in- 
convenienti  is  sufficiently  open  to  question,  from  the 


CH.  v.]  RULES    OF    INTERPRETATION.  143 

laxity  of  application,  as  well  as  of  opinion,  to  which  it 
leads.     But  the  argument  from  a  possible  abuse  of  a 
power  against  its  existence  or  use,  is,  in  its  nature, not 
only  perilous,  but,  in  respect  to  governments,  would 
shake  their  very  foundation.     Every  form  of  govern- 
iment  unavoidably  includes  a  grant  of  some  discretiona- 
ry powers.    It  would  be  wholly  imbecile  without  them. 
t  is  impossible  to  foresee  all  the  exigencies,  which 
lay  arise  in  the  progress  of  events,  connected  with  the 
rights,  duties,  and  operations  of  a  government.    If  they 
I  could  be  foreseen,  it  would  be  impossible  ab  ante  to 
provide  for  them.     The  means  must  be  subject  to  per- 
petual modification,  and  change  ;  they  must  be  adapt- 
ed to  the  existing  manners,  habits,  and  institutions  of 
;society,  which  are  never  stationary  ;  to  the  pressure  of 
I'dangers,  or  necessities ;  to  the  ends  in  view  ;  to  gen- 
;eral  and  permanent  operations,  as  well  as  to  fugitive 
;and  extraordinary  emergencies.     In  short,  if  the  whole 
[society  is  not  to  be  revolutionized  at  every  critical  pe- 
riod, and  remodeled  in  every  generation,  there  must  be 
[left  to  those,  who  administer  the  government,  a  very 
large  mass  of  discretionary  powers,  capable  of  greater 
tot  less  actual  expansion  according  to  circumstances, 
[and  sufficiently  flexible  not  to  involve  the  nation  in 
jutter  destruction  from  the  rigid  limitations  imposed 
upon  it  by  an  improvident  jealousy.     Every   power, 
however  limited,  as  well  as  broad,  is  in  its  ow^n  nature 
susceptible  of  abuse.     No  constitution  can  provide  per- 
fect guards  against  it.     Confidence  must  be  reposed 
some  where  ;  and  in  free  governments,  the  ordinary 
securities  against  abuse  are  found  in  the  responsibility 
of  rulers  to  the  people,  and  in  the  just  exercise  of  their 
elective  franchise  ;  and  ultimately  in  the  sovereign  pow- 
er of  change  belonging  to  them,  in  cases  requiring  ex- 


144         CONSTITUTION    OF    THE   U.    STATES.      [bOOK  III. 

traordinary  remedies.  Few  cases  are  to  be  supposed, 
in  which  a  power,  however  general,  will  be  exerted 
for  the  permanent  oppression  of  the  people.  And  yet, 
cases  may  easily  be  put,  in  which  a  limitation  upon 
such  a  power  might  be  found  in  practice  to  work  mis- 
chief ;  to  incite  foreign  aggression  ;  or  encourage  do- 
mestic disorder.  The  power  of  taxation,  for  instance, 
may  be  carried  to  a  ruinous  excess  ;  and  yet,  a  limita- 
tion upon  that  power  might,  in  a  given  case,  involve 
the  destruction  of  the  independence  of  the  country. 

^  193.  VII.  On  the  other  hand,  a  rule  of  equal  im- 
portance is,  not  to  enlarge  the  construction  of  a  given 
power  beyond  the  fair  scope  of  its  terms,  merely  be- 
cause the  restriction  is  inconvenient,  impolitic,  or  even 
mischievous.  If  it  be  mischievous,  the  power  of  re- 
dressing the  evil  lies  with  the  people  by  an  exercise  of 
the  power  of  amendment.  If  they  do  not  choose  to 
apply  the  remedy,  it  may  fairly  be  presumed,  that  the 
mischief  is  less  than  what  would  arise  from  a  further 
extension  of  the  power  ;  or  that  it  is  the  least  of  two 

\  evils.  Nor  should  it  ever  be  lost  sight  of,  that  the  gov- 
ernment of  the  United  States  is  one  of  limited  and 

^  enumerated  powers  ;  and  that  a  departure  from  the 
true  import  and  sense  of  its  powers  is,  pro  tanto,  the 
establishment  of  a  new  constitution.  It  is  doing  for 
the  people,  what  they  have  not  chosen  to  do  for  them- 
selves. It  is  usurping  the  functions  of  a  legislator, 
and  deserting  those  of  an  expounder  of  the  law. 
Arguments  drawn  from  impolicy  or  inconvenience 
ought  here  to  be  of  no  weight.  The  only  sound 
principle  is  to  declare,  ita  lex  scripta  est,  to  follow, 
and  to  obey.  Nor,  if  a  principle  so  just  and  conclu- 
sive could  be  overlooked,  could  there  well  be  found  a 
more  unsafe  guide  in  practice,  than  mere  policy  and 


CH.  v.]  RULES    OF    INTERPRETATION.  145 

• 

convenience.  Men  on  such  subjects  complexionallj 
differ  from  each  other.  The  same  men  differ  from 
themselves  at  diflferent  times.  Temporary  delusions, 
prejudices,  excitements,  and  objects  have  irresistible 
influence  in  mere  questions  of  policy.  And  the  policy 
of  one  age  may  ill  suit  the  w^ishes,  or  the  policy  of 
another.  The  constitution  is  not  to  be  subject  to  such 
fluctuations.  It  is  to  have  a  fixed,  uniform,  permanent 
construction.  It  should  be,  so  far  at  least  as  human 
infirmity  will  allov^^,  not  dependent  upon  the  passions 
or  parties  of  particular  times,  but  the  same  yesterday, 
to-day,  and  for  ever. 

^  194.  VIII.  No  construction  of  a  given  power  is  to 
be  allowed,  which  plainly  defeats,  or  impairs  its  avow- 
ed objects.  If,  therefore,  the  words  are  fairly  suscep- 
tible of  two  interpretations,  according  to  their  common 
sense  and  use,  the  one  of  which  would  defeat  one,  or 
all  of  the  objects,  for  which  it  was  obviously  given,  and 
the  other  of  which  would  preserve  and  promote  all,  the 
former  interpretation  ought  to  be  rejected,  and  the  lat- 
ter be  held  the  true  interpretation.  This  rule  results 
from  the  dictates  of  mere  common  sense  ;  for  every 
instrument  ought  to  be  so  construed,  ut  magis  valeat, 
qumn  pereat.  For  instance,  the  constitution  confers 
on  congress  the  power  to  declare  war.  Now  the  word 
declare  has  several  senses.  It  may  mean  to  proclaim, 
or  publish.  But  no  person  would  imagine,  that  this 
was  the  whole  sense,  in  which  the  word  is  used  in  this 
connexion.  It  should  be  interpreted  in  the  sense,  in 
which  the  phrase  is  used  among  nations,  when  applied 
to  such  a  subject  matter.  A  power  to  declare  war  is 
a  power  to  make,  and  carry  on  war.  It  is  no't  a  mere 
power  to  make  known  an  existing  thing,  but  to  give 
life  and  eflfect  to  the  thing  itself.     The  true  doctrine 

Mr  19 


146     CONSTITUTION  OF  THE  U.  STATES.  [BOOK  III. 

has  been  expressed  by  the  Supreme  Court :  *'  If  from 
the  imperfection  of  human  language  there  should  be 
any  serious  doubts  respecting  the  extent  of  any  given 
nower,  the  objects,  for  which  it  was  given,  especially 
when  those  objects  are  expressed  in  the  instrument  it- 
self, should  have  great  influence  in  the  construction." 
^  195.  IX.  Where  a  power  is  remedial  in  its  nature, 
there  is  much  reason  to  contend,  that  it  ought  to  be 
construed  liberally.  That  was  the  doctrine  of  Mr 
Chief  Justice  Jay,  in  Chisholm  v.  Georgia ;  and  it  is 
generally  adopted  in  the  interpretation  of  laws.  But 
this  liberality  of  exposition  is  clearly  inadmissible,  if  it 
extends  beyond  the  just  and  ordinary  sense  of  the 
terms. 

^  196.  X.  In  the  interpretation  of  a  power,  all  the 
ordinary  and  appropriate  means  to  execute  it  are  to  be 
deemed  a  part  of  the  power  itself.  This  results  from 
the  very  nature  and  design  of  a  constitution.  In  giving 
the  power,  it  does  not  intend  to  limit  it  to  any  one 
mode  of  exercising  it,  exclusive  of  all  others.  It  must 
be  obvious,  (as  has  been  already  suggested,)  that  the 
means  of  carrying  into  effect  the  objects  of  a  power 
may,  nay,  must  be  varied,  in  order  to  adapt  themselves 
to  the  exigencies  of  the  nation  at  different  times.  A 
mode  efficacious  and  useful  in  one  age,  or  under  one 
posture  of  circumstances,  may  be  wholly  vain,  or  even 
mischievous  at  another  time.  Government  pre-sup- 
poses  the  existence  of  a  perpetual  mutability  in  its 
own  operations  on 'those,  who  are  its  subjects  ;  and  a 
perpetual  flexibility  in  adapting  itself  to  their  wants, 
their  interests,  their  habits,  their  occupations,  and  their 
infirmities. 

^  197.  XI.  And  this  leads  us  to  remark,  in  the  next 
place,  that  in  the  interpretation  of  the  constitution  there 


€H.  v.]  RULES    OF    INTERPRETATION.  147 

is  no  solid  objection  to  implied  powers.  Had  the  fac- 
ulties of  man  been  competent  to  the  framing  of  a  sys- 
tem of  government,  which  would  leave  nothing  to  im- 
plication, it  cannot  be  doubted,  that  the  effort  would 
have  been  made  by  the  framers  of  our  constitution. 
The  fact,  however,  is  otherwise.  There  is  not  in  the 
whole  of  that  admirable  instrument  a  grant  of  powers, 
which  does  not  draw  after  it  others,  not  expressed,  but 
vital  to  their  exercise  ;  not  substantive  and  independ- 
ent, indeed,  but  auxiliary  and  subordinate.  There  is 
no  phrase  in  it,  which,  like  the  articles  of  confedera- 
tion, excludes  incidental  and  implied  powers,  and  which 
requires,  that  every  thing  granted  shall  be  expressly 
and  minutely  described.  Even  the  tenth  amendment, 
which  was  framed  for  the  purpose  of  quieting  the  ex- 
cessive jealousies,  which  had  been  excited,  omits  the 
word  "expressly,"  (which  was  contained  in  the  articles 
of  confederation,)  and  declares  only,  that  "the  powers, 
not  delegated  to  the  United  States,  nor  prohibited  by 
it  to  the  states,  are  reserved  to  the  states  respectively, 
or  to  the  people ;"  thus  leaving  the  question,  whether 
the  particular  power,  which  may  become  the  subject 
of  contest,  has  been  delegated  to  the  one  government, 
or  prohibited  to  the  other,  to  depend  upon  a  fair  con- 
struction of  the  whole  instrument.  The  men,  who 
drew  and  adopted  this  amendment,  had  experienced 
the  embarrassments,  resulting  from  the  insertion  of  this 
word  in  the  articles  of  confederation,  and  probably 
omitted  it  to  avoid  those  embarrassments.  A  consti- 
tution, to  contain  an  accurate  detail  of  all  the  subdi- 
visions, of  which  its  great  powers  will  admit,  and  of 
all  the  means,  by  which  these  may  be  carried  into  ex- 
ecution, would  partake  of  the  prolixity  of  a  legal  code, 
and  could  scarcely  be  embraced  by  the  human  mind. 


148     CONSTITUTION  OF  THE  U.  STATES.   [BOOK  UK 

It  would  probably  never  be  understood  by  the  public. 
Its  nature,  therefore,  requires,  that  only  its  great  out- 
lines should  be  marked,  its  important  objects  designa- 
ted, and  the  minor  ingredients,  which  compose  those 
objects,  be  deduced  from  the  nature  of  those  objects 
themselves.  That  this  idea  was  entertained  by  the 
framers  of  the  American  constitution,  is  not  only  to 
be  inferred  from  the  nature  of  the  instrument,  but  from 
the  language.  Why,  else,  were  some  of  the  limita- 
tions, found  in  the  ninth  section  of  the  first  article,  in- 
troduced ?  It  is  also,  in  some  degree,  warranted,  by 
their  having  omitted  to  use  any  restrictive  term,  which 
might  prevent  its  receiving  a  fair  and  just  interpreta- 
tion. In  considering  this  point,  we  should  never  for- 
get, that  it  is  a  constitution  we  are  expounding. 

^  198.  XII.  Another  point,  in  regard  to  the  inter- 
pretation of  the  constitution,  requires  us  to  advert  to 
the  rules  applicable  to  cases  of  concurrent  and  exclusive 
powers.  In  what  cases  are  the  powers  given  to  the 
general  government  exclusive,  and  in  what  cases  may 
the  states  maintain  a  concurrent  exercise  ?  Upon  this 
subject  we  have  an  elaborate  exposition  by  the  authors 
of  the  Federalist ;  and  as  it  involves  some  of  the  most 
delicate  questions  growing  out  of  the  constitution,  and 
those,  in  which  a  conflict  with  the  states  is  most  likely 
to  arise,  we  cannot  do  better  than  to  quote  the  reason- 
ing. 

^  199.  "An  entire  consolidation  of  the  states  into 
one  complete  national  sovereignty,  would  imply  an  en- 
tire subordination  of  the  parts  ;  and  whatever  powers 
might  remain  in  them,  would  be  altogether  dependent 
on  the  general  will.  But  as  the  plan  of  the  convention 
aims  only  at  a  partial  union  or  consolidation,  the  state 
governments  would  clearly  retain  all  the  rights  of  sove- 


CH.  v.]  RULES    OF    INTERPRETATION.  149 

reignty,  which  they  before  had,  and  which  were  not, 
by  that  act,  exclusively  delegated  to  the  United  States. 
This  exclusive  delegation,  or  rather  this  alienation  of 
state  sovereignty,  would  only  exist  in  three  cases  : 
where  the  constitution  in  express  terms  granted  an  ex- 
clusive authority  to  the  Union ;  where  it  granted,  in 
one  instance,  an  authority  to  the  Union,  and  in  another, 
prohibited  the  states  from  exercising  the  like  authority ; 
and  where  it  granted  an  authority  to  the  Union,  to 
which  a  similar  authority  in  the  states  would  be  abso- 
lutely and  totally  contradictory  and  repugnant,  I  use 
these  terms  to  distinguish  this  last  case  from  another, 
which  might  appear  to  resemble  it ;  but  which  would, 
in  fact,  be  essentially  different :  I  mean,  where  the 
exercise  of  a  concurrent  jurisdiction  might  be  produc- 
tive of  occasional  interferences  in  the  policy  of  any 
branch  of  administration,  but  would  not  imply  any  di- 
rect contradiction  or  repugnancy  in  point  of  constitu- 
tional authority.  These  three  cases  of  exclusive  juris- 
diction in  the  federal  government,  may  be  exemplified 
by  the  following  instances.  The  last  clause  but  one 
in  the  eighth  section  of  the  first  article,  provides  ex- 
pressly, that  congress  shall  exercise  '  exclusive  legisla- 
tion '  over  the  district  to  be  appropriated  as  the  seat 
of  government.  This  answers  to  the  first  case.  The 
first  clause  of  the  same  section  empowers  congress 
'  to  lay  and  collect  taxes,  duties,  imposts,  and  excises ;' 
and  the  second  clause  of  the  tenth  section  of  the  same 
article  declares,  that  '  no  state  shall,  without  the  con- 
sent of  congress,  lay  any  imposts  or  duties  on  imports 
or  exports,  except  for  the  purpose  of  executing  its 
inspection  laws.'  Hence  would  result  an  exclusive 
power  in  the  Union  to  lay  duties  on  imports  and  ex- 
ports, with  the  particular  exception  mentioned.     But 


150  CONSTITUTION    OF    THE    U.    STATES.    [bOOK  III, 

this  power  is   abridged  by  another  clause,  which  de- 
clares, that  no  tax  or  duty  shall  be  laid  on  articles  ex- 
ported from  any  state  ;  in  consequence  of  which  quali- 
fication, it  now  only  extends  to  the  duties  on  imports. 
This  answers  to  the  second  case.     The  third  will  be 
found  in  that  clause,  which  declares,  that  congress 
I  shall   have   power  '  to  establish  an  urdform  rule  of 
j naturalization  throughout  the  United  States.'     This 
^must  necessarily  be  exclusive  ;  because,  if  each  state 
^had  power  to  prescribe  a  distinct  rule,  there  could  be 
no  uniform  rule.^^     The  correctness  of  these  rules  of 
interpretation  has  never  been  controverted  ;  and  they 
have  been  often  recognised  by  the  Supreme  Court. 

§  200.  The  two  first  rules  are  so  completely  self- 
evident,  that  every  attempt  to  illustrate  them  would  be 
vain,  if  it  had  not  a  tendency  to  perplex  and  confuse. 
The  last  rule,  viz.  that  which  declares,  that  the  power 
is  exclusive  in  the  national  government,  where  an  au- 
thority is  granted  to  the  Union,  to  which  a  similar 
authority  in  the  states  would  be  absolutely  and  totally 
contradictory  and  repugnant,  is  that  alone,  which  may 
be  thought  to  require  comment.  This  rule  seems,  in 
its  own  nature,  as  little  susceptible  of  doubt,  as  the 
others,  in  reference  to  the  constitution.  For,  since  the 
constitution  has  declared,  that  the  constitution  and 
law5,  and  treaties  in  pursuance  of  it  shall  be  the  su- 
preme law  of  the  land  ;  it  would  be  absurd  to  say, 
that  a  state  law,  repugnant  to  it,  might  have  concur- 
rent operation  and  validity  ;  and  especially,  as  it  is 
expressly  added,  anything  in  the  constitution  or  laws 
of  any  state  to  the  contrary  notwithstanding.  The 
repugnancy,  then,  being  made  out,  it  follows,  that  the 
state  law  is  just  as  much  void,  as  though  it  had  been 
expressly  declared  to  be  void  ;  or  the  power  in  con- 


CH.  v.]  RULES    OF    INTERPRETATION.  151 

gress  had  been  expressly  declared  to  be  exclusive. 
Every  power  given  to  congress  is  by  the  constitution 
necessarily  supreme  ;  and  if,  from  its  nature,  or  from 
the  words  of  the  grant,  it  is  apparently  intended  to  be 
exclusive,  it  is  as  much  so,  as  if  the  states  were  ex- 
pressly forbidden  to  exercise  it. 

^  201.  And  this  leads  us  to  remark,  that  in  the  exer- 
cise of  concurrent  powers,  if  there  be  a  conflict  be- 
tween the  laws  of  the  Union  and  the  laws  of  the  states, 
the  former  being  supreme,  the  latter  must  of  course 
yield.  The  possibility,  nay  the  probability,  of  such  a 
conflict  was  foreseen  by  the  framers  of  the  constitution, 
and  was  accordingly  expressly  provided  for.  If  a  state 
passes  a  law  inconsistent  with  the  constitution  of  the 
United  States  it  is  a  mere  nullity.  If  it  passes  a  law 
clearly  within  its  own  constitutional  powers,  still  if  it 
conflicts  with  the  exercise  of  a  power  given  to  congress, 
to  the  extent  of  the  interference  its  operation  is  sus- 
pended ;  for  in  a  conflict  of  laws,  that  which  is  su- 
preme must  govern.  Therefore,  it  has  often  been  ad- 
judged, that  if  a  state  law  is  in  conflict  with  a  treaty, 
or  an  act  of  congress,  it  becomes  ipso  facto  inoperative 
to  the  extent  of  tfie  conflict. 

^  202.  From  this  great  rule,  that  the  constitution 
and  law  s,  made  in  pursuance  thereof,  are  supreme ; 
and  that  they  control  the  constitutions  and  laws  of  the 
states,  and  cannot  be  controlled  by  them,  from  this, 
which  may  be  deemed  an  axiom,  other  auxiliary  corol-  ^ 
laries  may  be  deduced.  In  the  first  place,  that,  if  a 
power  is  given  to  create  a  thing,  it  implies  a  power 
to  preserve  it.  Secondly,  that  a  power  to  destroy,  if 
wielded  by  a  different  hand,  is  hostile  to,  and  incom- 
patible with  this  power  to  create  and  preserve. 
Thirdly,  that  where  this  repugnancy  exists,  the  au- 


152  CONSTITUTION    OF    THE    U.    STATES.     [bOOK  III. 

thority,  which  is  supreme,  must  control,  and  not  yield 
to  that,  over  which  it  is  supreme.  Consequently,  the 
inferior  power  becomes  a  nullity. 

§  203.  But  a  question  of  a  still  more  delicate  nature 
may  arise ;  and  that  is,  how  far  in  the  exercise  of  a 
concurrent  power,  the  actual  legislation  of  congress  su- 
persedes the  state  legislation,  or  suspends  its  operation 
oveTr  the  subject  matter.  Are  the  state  laws  inopera- 
tive only  to  the  extent  of  the  actual  conflict ;  or  does 
the  legislation  of  congress  suspend  the  legislative  pow- 
er of  the  states  over  the  subject  matter  ?  To  such  an 
inquiry,  probably,  no  universal  answer  could  be  given. 
It  may  depend  upon  the  nature  of  the  power,  the  effect 
of  the  actual  exercise,  and  the  extent  of  the  subject 
matter. 

^  204.  It  has  been  sometimes  argued,  that  when  a 
power  is  granted  to  congress^  to  legislate  in  specifie 
cases,  for  purposes  growing  out  of  the  Union,  the  nat- 
ural conclusion  is,  that  the  power  is.  designed  to  be 
exclusive  ;  that  the  power  is  to  be  exercised  for  the 
good  of  the  whole,  by  the  will  of  the  whole,  and  con- 
sistently with  the  interests  of  the  whole  ;  and  that  these 
objects  can  no  where  be  so  clearly  seen,  or  so  thor- 
oughly weighed,  as  in  congress,  where  the  whole  na- 
tion is  represented.  But  the  argument  proves  too 
much  ;  and  pursued  to  its  full  extent,  it  would  establish, 
that  all  the  powers  granted  to  congress  are  exclusive, 
unless  where  concurrent  authority  is  expressly  reserved 
to  the  states.  For  instance,  upon  this  reasoning  the 
power  of  taxation  in  congress  would  annul  the  whole 
power  of  taxation  of  the  states  ;  and  thus  operate  a  vir- 
tual dissolution  of  their  sovereignty.  Such  a  preten- 
sion has  been  constantly  disclaimed. 


CH.  v.]  RULES    OF    INTERPRETATION.  153 

^  205.  On  the  other  hand,  it  has  been  maintained 
with  great  pertinacity,  that  the  states  possess  concur- 
rent authority  with  congress  in  all  cases,  where  the  pow- 
er is  not  expressly  declared  to  be  exclusive,  or  express- 
ly prohibited  to  the  states  ;  and  if,  in  the  exercise  of  a 
concurrent  power,  a  conflict  arises,  there  is  no  reason, 
why  each  should  not  be  deemed  equally  rightful.  But 
it  is  plain,  that  this  reasoning  goes  to  the  direct  over- 
throw of  the  principle  of  supremacy  ;  and,  if  admitted, 
it  would  enable  the  subordinate  sovereignty  to  annul 
the  powers  of  the  superior.  There  is  a  plain  repug- 
nance in  conferring  on  one  government  a  power  to  con- 
trol the  constitutional  measures  of  another,  which  other, 
with  respect  to  these  very  measures,  is  declared  to  be 
supreme  over  that,  which  exerts  the  control.  For  in- 
stance, the  states  have  aeknowledgedly  a  concurrent 
power  of  taxation.  But  it  is  wholly  inadmissible  to 
allow  that  power  to  be  exerted  over  any  instrument 
employed  by  the  general  government  to  execute  its 
own  powers  ;  for  such  a  power  to  tax  involves  a  pow- 
er to  destroy  ;  and  this  power  to  destroy  may  defeat, 
and  render  useless  the  power  to  create.  Thus,  a  state 
may  not  tax  the  mail,  the  mint,  patent  rights,  custom- 
house papers,  or  judicial  process  of  the  courts  of  the 
United  States.  And  yet  there  is  no  clause  in  the  con- 
stitution, which  prohibits  the  states  from  exercising 
the  power  ;  nor  any  exclusive  grant  to  the  United 
States.  The  apparent  repugnancy  creates,  by  implica- 
tion, the  prohibition. 

^  206.  In  considering,  then,  this  subject,  it  would  be 
impracticable  to  lay  down  any  universal  rule,  as  to 
what  powers  are,  by  implication,  exclusive  in  the  gen- 
eral government,  or  concurrent  in  the  states  ;  and  in 
relation  to  the  latter,  what  restrictions  either  on  the 

Ahr.  20 


154     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

power  itself,  or  on  the  actual  exercise  of  the  power, 
arise  by  implication.  In  some  cases,  as  we  have  seen, 
there  may  exist  a  concurrent  power,  and  yet  restric- 
tions upon  it  must  exist  in  regard  to  objects.  In  other 
cases,  the  actual  operations  of  the  power  only  are  sus- 
pended or  controlled,  when  there  arises  a  conflict  with 
the  actual  operations  of  the  Union.  Every  question  of 
this  sort  must  be  decided  by  itself  upon  its  own  circum- 
stances and  reasons.  Because  the  power  to  regulate 
commerce,  from  its  nature  and  objects,  is  exclusive,  it 
does  not  follow,  that  the  power  to  pass  bankrupt  laws 
also  is  exclusive. 

^  207.  XIII.  Another  rule  of  interpretation  deserves 
consideration  in  regard  to  the  constitution.  There  are 
certain  maxims,  which  have  found  their  way,  not  only 
into  judicial  discussions,  but  into  the  business  of  com- 
mon life,  as  founded  in  common  sense,  and  common 
convenience.  Thus,  it  is  often  said,  that  in  an  instru- 
ment a  specification  of  particulars  is  an  exclusion  of 
generals  ;  or  the  expression  of  one  thing  is  the  exclu- 
sion of  another.  Lord  Bacon's  remark,  "  that,  as  ex- 
ception strengthens  the  force  of  a  law  in  cases  not  ex- 
cepted, so  enumeration  weakens  it  in  cases  not  enume- 
rated," has  been  perpetually  referred  to,  as  a  fine  illus- 
tration. These  maxims,  rightly  understood,  and  rightly 
applied,  undoubtedly  furnish  safe  guides  to  assist  us  in 
the  task  of  exposition.  But  they  are  susceptible  of  be- 
ing applied,  and  indeed  are  often  ingeniously  applied, 
to  the  subversion  of  the  text,  and  the  objects  of  the 
instrument.  Thus,  it  has  been  suggested,  that  an 
affirmative  provision  in  a  particular  case  excludes  the 
existence  of  the  like  provision  in  every  other  case  ; 
and  a  negative  provision  in  a  particular  case  admits 
the  existence  of  the  same  form  in  every  other  case. 


CH.  v.]  RULES    OF    INTERPRETATION.  155 

Both  of  these  deductions  are,  or  rather  may  be,  un- 
founded in  solid  reasoning.  Thus,  it  was  objected  to 
the  constitution,  that,  having  provided  for  the  trial  by 
jury  in  criminal  cases,  there  was  an  implied  exclusion 
of  it  in  civil  cases.  As  if  there  was  not  an  essential 
difference  between  silence  and  abolition,  between  a 
positive  adoption  of  it  in  one  class  of  cases,  and  a  dis- 
cretionary right  (it  being  clearly  within  the  reach  of 
the  judicial  power  confided  to  the  Union)  to  adopt, 
or  reject  it  in  all  or  any  other  cases.  One  might  with 
just  as  much  propriety  hold,  that,  because  congress 
have  power  "  to  declare  war,"  but  no  power  is  expressly 
given  to  make  peace,  the  latter  is  excluded  ;  or  that, 
because  it  is  declared,  that  "  no  bill  of  attainder,  or 
ex  post  facto  law  shall  be  passed  "  by  congress,  there- 
fore congress  possess  in  all  other  cases  the  right  to 
pass  any  laws.  The  truth  is,  that  in  order  to  ascer- 
tain, how  far  an  affirmative  or  negative  provision  ex- 
cludes, or  implies  others,  we  must  look  to  the  nature 
of  the  provision,  the  subject  matter,  the  objects,  and  the 
scope  of  the  instrument.  These,  and  these  only,  can 
properly  determine  the  rule  of  construction.  There 
can  be  no  doubt,  that  an  affirmative  grant  of  powers 
in  many  cases  will  imply  an  exclusion  of  all  others. 
As,  for  instance,  the  constitution  declares,  that  the 
powers  of  congress  shall  extend  to  certain  enumerated 
cases.  This  specification  of  particulars  evidently  ex- 
cludes all  pretensions  to  a  general  legislative  authority. 
Why  ?  Because  an  affirmative  grant  of  special  powers 
would  be  absurd,  as  well  as  useless,  if  a  general  au- 
thority were  intended.  In  relation,  then,  to  such  a 
subject  as  a  constitution,  the  natural  and  obvious  sense 
of  its  provisions,  apart  from  any  technical  or  artificial 
rules,  is  the  true  criterion  of  construction. 


^>ml 


156     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

§  208.  XIV.  Another  rule  of  interpretation  of  the 
^-  constitution,  suggested  bj  the  foregoing,  is,  that  the 

natural  import  of  a  single  clause  is  not  to  be  narrowed, 
so  as  to  exclude  implied  powers  resulting  from  its 
character,  simply  because  there  is  another  clause, 
which  enumerates  certain  powers,  which  might  other- 
wise be  deemed  implied  powers  within  its  scope  ;  for 
in  such  cases  we  are  not,  as  a  matter  of  course,  to  as- 
sume, that  the  affirmative  specification  excludes  all 
other  implications.  This  rule  has  been  put  in  a  clear 
and  just  light  by  one  of  our  most  distinguished  states- 
men ;  and  his  illustration  will  be  more  satisfactory, 
perhaps,  than  any  other,  which  can  be  offered.  *'  The 
constitution,"  says  he,  "  vests  in  congress,  expressly, 
the  power  to  lay  and  collect  taxes,  duties,  imposts,  and 
excises,  and  the  power  to  regulate  trade.  That  the 
former  power,  if  not  particularly  expressed,  would 
have  been  included  in  the  latter,  as  one  of  the  objects 
of  a  general  power  to  regulate  trade,  is  not  necessarily 
impugned  by  its  being  so  expressed.  Examples  of 
this  sort  cannot  sometimes  be  easily  avoided,  and  are 
to  be  seen  elsewhere  in  the  constitution.  Thus,  the 
power  *  to  define  and  punish  offences  against  the  law 
of  nations  '  includes  the  power,  afterwards  particularly 
expressed,  '  to  make  rules  concerning  captures,'  &:c. 
from  offending  neutrals.  So,  also,  a  power  '  to  coin 
money '  would,  doubtless,  include  that  of  '  regulating 
its  value,'  had  not  the  latter  power  been  expressly  in- 
serted. The  term  taxes,  if  standing  alone,  would  cer- 
tainly have  included  *  duties,  imposts,  and  excises.' 
In  another  clause  it  is  said,  *  no  tax  or  duty  shall  be 
laid  on  exports.'  Here  the  two  terms  are  used  as 
synonymous.  And  in  another  clause,  where  it  is  said 
«  no  state  shall  lay  any  imposts  or  duties,'  &c.  the 


CH.  v.]  RULES    OF    INTERPRETATION.  157 

terms  imposts  and  duties  are  synonymous.  Pleonasms, 
tautologies,  and  the  promiscuous  use  of  terms  and  ^"8^ 
phrases,  differing  in  their  shades  of  meaning,  (always 
to  be  expounded  with  reference  to  the  context,  and 
under  the  control  of  the  general  character  and  scope 
of  the  instrument,  in  which  they  are  found,)  are  to  be 
ascribed,  sometimes  to  the  purposes  of  greater  caution, 
sometimes  to  the  imperfection  of  language,  and  some- 
times to  the  imperfection  of  man  himself.  In  this 
view  of  the  subject  it  was  quite  natural,  however  cer- 
tainly the  power  to  regulate  trade  might  include  a 
power  to  impose  duties  on  it,  not  to  omit  it  in  a  clause 
enumerating  the  several  modes  of  revenue  authorized 
by  the  construction.  In  few  cases  could  the  rule, 
ex  majori  cautela,  occur  with  more  claim  to  respect." 

^  209.  We  may  close  this  view  of  some  of  the  more 
important  rules  to  be  employed  in  the  interpretation 
of  the  constitution,  by  adverting  to  a  few  belonging  to 
mere  verbal  criticism,  which  are  indeed  but  corollaries 
from  what  has  been  said,  and  have  been  already  allud- 
ed to ;  but  which,  at  the  same  time,  it  may  be  of  some 
use  again  distinctly  to  enunciate. 

^210.  XV.  In  the  first  place,  then,  every  word 
employed  in  the  constitution  is  to  be  expounded  in  its 
plain,  obvious,  and  common  sense,  unless  the  context 
furnishes  some  ground  lo  control,  qualify,  or  enlarge 
it.  Constitutions  are  not  designed  for  metaphysical 
or  logical  subtleties,  for  niceties  of  expression,  for 
critical  propriety,  for  elaborate  shades  of  meaning,  or 
for  the  exercise  of  philosophical  acuteness,  or  juridical 
research.  They  are  instruments  of  a  practical  nature, 
founded  on  the  common  business  of  human  life,  adapt- 
ed to  common  wants,  designed  for  common  use,  and 
fitted  for  common  understandings.     The  people  make 


158     CONSTITUTION  OF  THE  U.  STATES.  [BOOK  III. 

them  ;  the  people  adopt  them  ;  the  people  must  be 
supposed  to  read  them,  with  the  help  of  common  sense; 
and  cannot  be  presumed  to  admit  in  them  any  recon- 
dite meaning,  or  any  extraordinary  gloss. 

^  21 1.  XVI.  But,  in  the  next  place,  words,  from  the 
necessary  imperfection  of  all  human  language,  acquire 
different  shades  of  meaning,  each  of  which  is  equally 
appropriate,  and  equally  legitimate  ;  each  of  which  re- 
cedes in  a  wider  or  narrower  degree  from  the  others, 
according  to  circumstances  ;  and  each  of  which  receives 
from  its  general  use  some  indefiniteness  and  obscu- 
rity, as  to  its  exact  boundary  and  extent.  We  are, 
indeed,  often  driven  to  multiply  commentaries  from  the 
vagueness  of  words  in  themselves ;  and  perhaps  still 
more  often  from  the  different  manner,  in  which  different 
minds  are  accustomed  to  employ  them.  They  expand 
or  contract,  not  only  from  the  conventional  modifica- 
tions introduced  by  the  changes  of  society  ;  but  also 
from  the  more  loose  or  more  exact  uses,  to  which  men 
ofdifferent  talents,  acquirements,  and  tastes,  from  choice 
or  necessity  apply  them.  No  person  can  fail  to  remark 
the  gradual  deflections  in  the  meaning  of  words  from 
one  age  to  another ;  and  so  constantly  is  this  process 
going  on,  that  the  daily  language  of  life  in  one  genera- 
tion sometimes  requires  the  aid  of  a  glossary  in  another. 
It  has  been  justly  remarked,  that  no  language  is  so  co- 
pious, as  to  supply  words  and  phrases  for  every  com- 
plex idea ;  or  so  correct,  as  not  to  include  many,  equiv- 
ocally denoting  different  ideas.  Hence  it  must  happen, 
that  however  accurately  objects  may  be  discriminated 
in  themselves,  and  however  accurately  the  discrimina- 
tion may  be  considered,  the  definition  of  them  may  be 
rendered  inaccurate  by  the  inaccuracy  of  the  terms,  in 
which  it  is  delivered.     We  must  resort  then  to   the 


CH.  v.]  RULES    OF    INTERPRETATION.  159 

context,  and  shape  the  particular  meaning,  so  as  to 
make  it  fit  that  of  the  connecting  words,  and  agree 
with  the  subject  matter. 

§  212.  XVII.  In  the  next  place,  where  technical 
words  are  used,  the  technical  meaning  is  to  be  applied 
to  them,  unless  it  is  repelled  by  the  context.  But  the 
same  word  often  possesses  a  technical,  and  a  common 
sense.  In  such  a  case  the  latter  is  to  be  preferred, 
unless  some  attendant  circumstance  points  clearly  to 
the  former.  No  one  would  doubt,  when  the  constitu- 
tion has  declared,  that  "  the  privilege  of  the  writ  of 
habeas  corpus  shall  not  be  suspended,"  unless  under 
peculiar  circumstances,  that  it  referred,  not  to  every 
sort  of  writ,  which  has  acquired  that  name  ;  but  to 
that,  which  has  been  emphatically  so  called,  on  account 
of  its  remedial  power  to  free  a  party  from  arbitrary 
imprisonment.  So,  again,  when  it  declares,  that  in 
suits  at  common  laiv,  &c.  the  right  of  trial  by  jury  shall 
be  preserved,  though  the  phrase  "common  law  "  admits 
of  different  meanings,  no  one  can  doubt,  that  it  is  used 
in  a  technical  sense.  When,  again,  it  declares,  that 
congress  shall  have  power  to  provide  a  navy,  we  read- 
ily comprehend,  that  authority  is  given  to  construct, 
prepare,  or  in  any  other  manner  to  obtain  a  navy.  But 
when  congress  is  further  authorized  to  provide  for  call- 
ing forth  the  militia,  we  perceive  at  once,  that  the 
word  "  provide  "  is  used  in  a  somewhat  different  sense. 

^  213.  XVIII.  And  this  leads  us  to  remark,  in  the 
next  place,  that  it  is  by  no  means  a  correct  rule  of 
interpretation  to  construe  the  same  word  in  the  same 
sense,  wherever  it  occurs  in  the  same  instrument.  It 
does  not  follow,  either  logically  or  grammatically,  that 
because  a  word  is  found  in  one  connexion  in  the  con- 
stitution,   with  a  definite  sense,  therefore  the  same 


160         CONSTITUTION    OF  THE    U.    STATES.      [BOOK  III. 

sense  is  to  be  adopted  in  every  other  connexion,  in 
which  it  occurs.  This  would  be  to  suppose,  that  the 
framers  weighed  only  the  force  of  single  words,  as  phi- 
lologists or  critics,  and  not  whole  clauses  and  objects, 
as  statesmen  and  practical  reasoners.  And  yet  noth- 
ing has  been  more  common  than  to  subject  the  con- 
stitution to  this  narrow  and  mischievous  criticism. 
Men  of  ingenious  and  subtle  minds,  who  seek  for 
symmetry  and  harmony  in  language,  having  found  in 
the  constitution  a  word  used  in  some  sense,  which 
falls  in  with  their  favourite  theory  of  interpreting  it, 
have  made  that  the  standard,  by  which  to  measure  its 
use  in  every  other  part  of  the  instrument.  They  have 
thus  stretched  it,  as  it  were,  on  the  bed  of  Procustes, 
lopping  off  its  meaning,  when  it  seemed  too  large  for 
their  purposes,  and  extending  it,  when  it  seemed  too 
short.  They  have  thus  distorted  it  to  the  most  unnat- 
ural shapes,  and  crippled,  where  they  have  sought  only 
to  adjust  its  proportions  according  to  their  own  opin- 
ions. It  was  very  justly  observed  by  the  Supreme 
Court,  "  that  the  same  words  have  not  necessarily  the 
same  meaning  attached  to  them,  when  found  in  differ- 
ent parts  of  the  same  instrument.  Their  meaning 
is  controlled  by  the  context.  This  is  undoubtedly 
true.  In  common  language,  the  same  word  has  va- 
rious meanings ;  and  the  peculiar  sense,  in  which  it 
is  used  in  any  sentence,  is  to  be  determined  by  the 
context."  A  very  easy  example  of  this  sort  will 
be  found  in  the  use  of  the  word  "establish,"  which  is 
found  in  various  places  in  the  constitution.  Thus, 
in  the  preamble,  one  object  of  the  constitution  is 
avowed  to  be  "to  establish  justice,"  which  seems 
here  to  mean  to  settle  firmly,  to  fix  unalterably,  or 
rather,  perhaps,   as   justice,  abstractedly  considered. 


CH.  v.]  RULES  OF  INTERPRETATION.  161 

must  be  considered  as  for  ever  fixed  and  unalterable,  to 
dispense  or  administer  justice.  Again,  the  constitution 
declares,  that  congress  shall  have  power  "  to  estabUsh 
an  uniform  rule  of  naturalization,  and  uniform  laws  on 
the  subject  of  bankruptcies,"  where  it  is  manifestly- 
used  as  equivalent  to  make,  or  form,  and  not  to  fix  or 
settle  unalterably  and  forever.  Again,  "  congress  shall 
have  power  to  estabhsh  post-offices  and  post-roads," 
where  the  appropriate  sense  would  seem  to  be  to  cre- 
ate, to  found,  and  to  regulate,  not  so  much  with  a  view 
to  permanence  of  form,  as  to  convenience  of  action. 
Again,  it  is  declared,  that  "  congress  shall  make  no  law 
respecting  an  estabHshment  of  rehgion,"  which  seems 
to  prohibit  any  laws,  which  shall  recognise,  found,  con- 
firm, or  patronize  any  particular  religion,  or  form  of  re- 
ligion, whether  permanent  or  temporary,  whether 
already  existing,  or  to  arise  in  future.  In  this  clause, 
establishment  seems  equivalent  in  meaning  to  settle- 
ment, recognition,  or  support.  And  again,  in  the  pre- 
amble, it  is  said,  "  We,  the  people,  &c.  do  ordain  and 
establish  this  constitution,"  &c.  where  the  most  appro- 
priate sense  seems  to  be  to  create,  to  ratify,  and  to  con- 
firm. So,  the  word  "  state  "  will  be  found  used  in  the 
constitution  in  all  the  various  senses,  to  which  it  is  com- 
monly applied.  It  sometimes  means,  the  separate  sec- 
tions of  territory  occupied  by  the  political  societies 
within  each ;  sometimes  the  particular  governments 
estabhshed  by  these  societies ;  sometimes  these  socie- 
ties as  organized  into  these  particular  governments ; 
and  lastly,  sometimes  the  people  composing  these  polit- 
ical societies  in  their  highest  sovereign  capacity. 

§  214.  XIX.  But  the  most  important  rule,  in  cases 
of  this  nature,  is,  that  a  constitution  of  government 
does  not,  and  cannot,  from  its  nature,  depend  in  any 

Abr.  21 


162         CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

great  degree  upon  mere  verbal  criticism,  or  upon  the 
import  of  single  words.  Such  criticism  may  not  be 
wholly  without  use ;  it  may  sometimes  illustrate,  or 
unfold  the  appropriate  sense ;  but  unless  it  stands  well 
with  the  context  and  subject-matter,  it  must  yield  to 
the  latter.  While,  then,  we  may  well  resort  to  the 
meaning  of  single  words  to  assist  our  inquiries,  we 
should  never  forget,  that  it  is  an  instrument  of  govern- 
ment we  are  to  construe ;  and,  as  has  been  already 
stated,  that  must  be  the  truest  exposition,  which  best 
harmonizes  with  its  design,  its  objects,  and  its  general 
structure. 

§  215.  The  remark  of  Mr.  Burke  may,  with  a  very 
slight  change  of  phrase,  be  addressed  as  an  admonition 
to  all  those,  who  are  called  upon  to  frame,  or  to  inter- 
pret a  constitution.  Government  is  a  practical  thing 
made  for  the  happiness  of  mankind,  and  not  to  furnish 
out  a  spectacle  of  uniformity  to  gratify  the  schemes  ol 
visionary  politicians.  The  business  of  those,  who  are 
called  to  administer  it,  is  to  rule,  and  not  to  wrangle. 
It  would  be  a  poor  compensation,  that  we  had  tri- 
umphed in  a  dispute,  whilst  we  had  lost  an  empire ; 
that  we  had  frittered  down  a  power,  and  at  the  same 
time  had  destroyed  the  repubhc. 


CH.  VI.]  THE    PREAMBLE.  163 

CHAPTER  VL 

THE    PREAMBLE. 

§  216.  Having  disposed  of  these  preliminary  in- 
quiries, we  are  now  arrived  at  that  part  of  our  labours, 
which  involves  a  commentary  upon  the  actual  provi- 
sions of  the  constitution  of  the  United  States.  It  is 
proposed  generally  to  take  up  the  successive  clauses  in 
the  order  in  which  they  stand  in  the  instrument  itself, 
so  that  the  exposition  may  naturally  flow  from  the  terms 
of  the  text. 

§  217.  We  begin  then  with  the  preamble  of  the 
constitution.     It  is  in  the  following  words : 

"We,  the  people  of  the  United  States,  in  order 
"  to  form  a  more  perfect  union,  establish  justice,  insure 
"  domestic  tranquiUity,  provide  for  the  common  defence, 
"  promote  the  general  welfare,  and  secure  the  blessings 
"  of  liberty  to  ourselves  and  our  posterity,  do  ordain  and 
"  establish  this  constitution  for  the  United  States  of 
"  America." 

^  218.  The  importance  of  examining  the  preamble, 
for  the  purpose  of  expounding  the  language  of  a  stat- 
ute, has  been  long  felt,  and  universally  conceded  in  all 
juridical  discussions.  It  is  an  admitted  maxim  in  the 
ordinary  course  of  the  administration  of  justice,  that 
the  preamble  of  a  statute  is  a  key  to  open  the  mind  of 
the  makers,  as  to  the  mischiefs,  which  are  to  be  reme- 
died, and  the  objects,  which  are  to  be  accomplished  by 
the  provisions  of  the  statute.  We  find  it  laid  down  in 
some  of  our  earliest  authorities  in  the  common  law ; 
and  civilians  are  accustomed  to  a  similar  expression, 
cessante  legis  prcemio,  cessat  et  ipsa  lex. 


164    CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

§  219.  There  does  not  seem  any  reason,  why,  in  a 
fundamental  law  or  constitution  of  government,  an 
equal  attention  should  not  be  given  to  the  intention  of 
the  framers,  as  stated  in  the  preamble.  And  accord- 
ingly we  find,  that  it  has  been  constantly  referred  to 
by  statesmen  and  jurists  to  aid  them  in  the  exposition 
of  its  provisions. 

§  220.  The  language  of  the  preamble  of  the  consti- 
tution was  probably  in  a  good  measure  drawn  from 
that  of  the  third  article  of  the  confederation,  which  de- 
clares, that  "The  said  states  hereby  severally  enter 
into  a  firm  league  of  friendship  with  each  other,  for 
their  common  defence,  the  security  of  their  liberties, 
and  their  mutual  and  general  welfare."  And  we  accord- 
ingly find,  that  the  first  resolution  offered  in  the  con- 
vention, which  framed  the  constitution,  was,  that  the 
articles  of  the  confederation  ought  to  be  so  corrected 
and  enlarged,  as  to  accomplish  the  objects  proposed 
by  their  institution,  namely,  common,  defence,  security 
of  liberty,  and  general  welfare. 

^  221.  And,  here,  we  must  guard  ourselves  against 
an  error,  which  is  too  often  allowed  to  creep  into  the 
discussions  upon  this  subject.  The  preamble  never 
can  be  resorted  to,  to  enlarge  the  powers  confided  to 
the  general  government,  or  any  of  its  departments.  It 
cannot  confer  any  power  per  se ;  it  can  never  amount, 
by  implication,  to  an  enlargement  of  any  power  express- 
ly given.  It  can  never  be  the  legitimate  source  of  any 
implied  power,  when  otherwise  withdrawn  from  the 
constitution.  Its  true  oflice  is  to  expound  the  nature, 
and  extent,  and  application  of  the  powers  actually  con- 
ferred by  the  constitution,  and  not  substantively  to 
create  them.  For  example,  the  preamble  declares  one 
object  to  be,  "  to  provide  for  the  common  defence." 


CH.  VI.]  THE    PREAMBLE.  165 

jk  No  one  can  doubt,  that  this  does  not  enlarge  the  pow- 
■  er  of  congress  to  pass  any  measures,  which  they  may 
w-   deem  useful  for  the  common  defence.    But,  suppose  the 
I    terms  of  a  given  power  admit  of  two  constructions,  the 
one  more  restrictive,  the  other  more  Hberal,  and  each 
of  them  is  consistent  with  the  words,  but  is,  and  ought 
to  be,  governed  by  the  intent  of  the  power ;  if  one 
would  promote,  and  the  other  defeat  the  common  de- 
fence, ought  not  the  former,  upon  the  soundest  princi-i 
pies  of  interpretation  to  be  adopted?    Are  we  at  liberty, 
upon  any  principles  of  reason,  or  common  sense,  to 
adopt  a  restrictive  meaning,  which  will  defeat  an  avow- 
ed object  of  the  constitution,  when  another   equally 
natural,  and  more  appropriate  to  the  object,  is  before  us? 
"  Would  not  this  be  to  destroy  an  instrument  by  a  meas- 
ure of  its  words,  which  that  instrument  itself  repudi- 
ates? 

^  222.  The  constitution  having  been  in  operation 
more  than  forty  years,  and  being  generally  approved,  it 
may,  at  first  sight,  seem  unnecessary  to  enter  upon  any 
examination  of  the  manner  and  extent,  to  which  it  is 
calculated  to  accomplish  the  objects  proposed  in  the 
preamble,  or  the  importance  of  those  objects,  not  merely 
to  the  whole,  in  a  national  view,  but  also  to  the  indi- 
vidual states.  Attempts  have,  however,  been  made  at 
different  times,  in  different  parts  of  the  Union,  to  stir 
up  a  disaffection  to  the  theory,  as  well  as  to  the  actual 
exercise  of  the  powers  of  the  general  government ;  to 
doubt  its  advantages ;  to  exaggerate  the  unavoidable 
inequalities  of  its  operations ;  to  accustom  the  minds  of 
the  people  to  contemplate  the  consequences  of  a  divi- 
sion, as  fraught  with  no  dangerous  evils ;  and  thus  to 
lead  the  way,  if  not  designedly,  at  least  insensibly,  to  a 
separation,  as  involving  no  necessary  sacrifice  of  impor- 


166  CONSTITUTION  OF  THEU.  STATES.    [bOOK  III. 

tant  blessings,  or  principles,  and,  on  the  whole,  under 
some  circumstances,  as  not  undesirable,  or  improbable. 

§  223.  It  is  easy  to  see,  how  many  different,  and  even 
opposite  motives  may,  in  different  parts  of  the  Union,  at 
different  times,  give  rise  to,  and  encourage  such  specu- 
lations. Political  passions  and  prejudices,  the  disap- 
pointments of  personal  ambition,  the  excitements  and 
mortifications  of  party  strife,  the  struggles  for  particular 
systems  and  measures,  the  interests,  jealousies,  and 
rivalries  of  particular  states,  the  unequal  local  pressure 
of  a  particular  system  of  policy,  either  temporary  or 
permanent,  the  honest  zeal  of  mere  theorists  and  enthu- 
siasts in  relation  to  government,  the  real  or  imaginary 
dread  of  a  national  consolidation,  the  debasive  and  cor- 
rupt projects  of  mere  demagogues ;  these,  and  many 
other  influences  of  more  or  less  purity  and  extent,  may, 
and  we  almost  fear,  must,  among  a  free  people,  open  to 
argument,  and  eager  for  discussion,  and  anxious  for  a 
more  perfect  organization  of  society,  for  ever  preserve 
the  elements  of  doubt  and  discord,  arid  bring  into  inqui- 
ry among  many  minds,  the  question  of  the  value  of  the 
Union. 

^  224.  Under  these  circumstances  it  may  not  be 
without  some  use  to  condense,  in  an  abridged  form, 
some  of  those  reasons,  which  became,  with  reflecting 
minds,  the  solid  foundation,  on  which  the  adoption  of 
the  constitution  was  originally  rested,  and  which,  being 
permanent  in  their  nature,  ought  to  secure  its  perpe- 
tuity, as  the  sheet  anchor  of  our  political  hopes. 

^  225.  The  constitution,  then,  was  adopted,  first  "  to 
form  a  more  perfect  union."  Why  this  was  desirable 
has  been  in  some  measure  anticipated  in  considering 
the  defects  of  the  confederation.  When  the  constitu- 
tion, however,  was  before  the  people  for  ratification, 


CH.  VI.]  THE    PREAMBLE.  167 

suggestions  were  frequently  made  by  those,  who  were 
opposed  to  it,  that  the  country  was  too  extensive  for  a 
single  national  government,  and  ought  to  be  broken  up 
into  several  distinct  confederacies,  or  sovereignties ;  and 
some  even  went  so  far,  as  to  doubt,  whether  it  was  not, 
on  the  whole,  best,  that  each  state  should  retain  a  sep- 
arate, independent,  and  sovereign  political  existence. 
Those,  who  contemplated  several  confederacies,  specu- 
lated upon  a  dismemberment  into  three  great  confede- 
racies, one  of  the  northern,  another  of  the  middle,  and 
a  third  of  the  southern  states.  The  greater  probability, 
certainly,  then  was  of  a  separation  into  two  confedera- 
cies ;  the  one  composed  of  the  northern  and  middle 
states,  and  the  other  of  the  southern.  The  reasoning 
of  the  Federalist  on  this  subject  seems  absolutely  irre- 
sistible. The  progress  of  the  population  in  the  west- 
ern territory  since  that  period  has  materially  changed 
the  basis  of  all  that  reasoning.  There  could  scarcely 
now  exist,  upon  any  dismemberment  with  a  view  to 
local  interests,  poUtical  associations,  or  public  safety, 
less  than  three  confederacies,  and  most  probably  four. 
And  it  is  more  than  probable,  that  the  line  of  division 
would  be  traced  out  by  geographical  boundaries,  which 
would  separate  the  slave-holding  from  the  non-slave- 
holding  states.  Such  a  distinction  in  government  is  so 
fraught  with  causes  of  irritation  and  alarm,  that  no  hon- 
est patriot  could  contemplate  it  without  many  painful 
and  distressing  fears. 

^  226.  But  the  material  consideration,  which  should 
be  kept  steadily  in  view,  is,  that  under  such  circum- 
stances a  national  government,  clothed  with  powers  at 
least  equally  extensive  with  those  given  by  the  consti- 
tution, would  be  indispensable  for  the  preservation  of 
each  separate  confederacy.     Nay,  it  cannot  be  doubted, 


168     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

that  much  larger  powers,  and  much  heavier  expendi- 
tures would  be  necessary.  No  nation  could  long  main- 
tain its  public  liberdes,  surrounded  by  powerful  and 
vigilant  neighbours,  unless  it  possessed  a  government 
clothed  with  powers  of  great  efficiency,  prompt  to  act, 
and  able  to  repel  every  invasion  of  its  rights.  Nor 
would  it  afford  the  slightest  security,  that  all  the  con- 
federacies were  composed  of  a  people  descended  from 
the  same  ancestors,  speaking  the  same  language,  pro- 
fessing the  same  religion,  attached  to  the  same  princi- 
ples of  government,  and  possessing  similar  manners, 
habits,  and  customs.  If  it  be  true,  that  these  circum- 
stances would  not  be  sufficient  to  hold  them  in  a  bond 
of  peace  and  union,  when  forming  one  government,  act- 
ing for  the  interests,  and  as  the  representadves  of  the 
rights  of  the  whole  ;  how  could  a  better  fate  be  expect- 
ed, when  the  interests  and  the  representation  were 
separate;  and  ambition,  and  local  interests,  and  feelings, 
and  peculiarities  of  climate,  and  products,  and  institu- 
tions, and  imaginary  or  real  aggressions  and  grievances, 
and  the  rivalries  of  commerce,  and  the  jealousies  of 
dominion,  should  spread  themselves  over  the  distinct 
councils,  which  would  regulate  their  concerns  by  inde- 
pendent legislation?  The  experience  of  the  whole 
world  is  against  any  reliance  for  security  and  peace  be- 
tw^een  neighbouring  nations,  under  such  circumstances. 
The  Abbe  Mably  has  forcibly  stated  in  a  single  pas- 
sage the  whole  result  of  human  experience  on  this  sub- 
ject. "  Neighbouring  states,"  says  he,  "  are  naturally 
enemies  of  each  other,  unless  their  common  weakness 
forces  them  to  league  in  a  confederative  republic ;  and 
their  constitution  prevents  the  differences,  that  neigh- 
bourhood occasions,  exdnguishing  that  secret  jealousy, 
which  disposes  all  states  to  aggrandize  themselves  at 


CH.  VI.]  THE  PREAMBLE*  169 

the  expense  of  their  neighbours."  This  passage,  as 
has  been  truly  observed,  at  the  same  time  points  out 
the  evils,  and  suggests  the  remedy. 

§  227.  The  same  reasoning  would  apply  with  aug- 
mented force  to  the  case  of  a  dismemberment,  when 
each  state  should  by  itself  constitute  a  nation.  The 
very  inequalities  in  the  size,  the  revenues,  the  popu- 
lation, the  products,  the  interests,  and  even  in  the  insti- 
tutions and  laws  of  each,  would  occasion  a  perpetual 
petty  warfare  of  legislation,  of  border  aggressions  and 
violations,  and  of  political  and  personal  animosities, 
which,  first  or  last,  would  terminate  in  the  subjugation 
of  the  weaker  to  the  arms  of  the  stronger.  In  our  fur- 
ther observations  on  this  subject,  it  is  not  proposed 
to  distinguish  the  case  of  several  confederacies  from 
that  of  a  complete  separation  of  all  the  states ;  as  in  a 
general  sense  the  remarks  apply  with  irresistible,  if  not 
with  uniform,  force  to  each, 

§  228.  Does,  then,  the  extent  of  our  territory  offer 
any  solid  objection  against  forming  "  this  more  perfect 
union  ?  "  This  question,  so  far  as  respects  the  original 
territory  included  within  the  boundaries  of  the  United 
States  by  treaty  of  peace  of  1783,  seems  almost  set- 
tled by  the  experience  of  the  last  forty  years.  It  is  no 
longer  a  matter  of  conjecture,  how  far  the  govern- 
ment is  capable  (all  other  things  being  equal)  of  being 
practically  apphed  to  the  whole  of  that  territory.  The 
distance  between  the  utmost  limits  of  our  present  pop- 
ulation, and  the  diversity  of  interests  among  the  whole, 
seem  to  have  presented  no  obstacles  under  the  benefi- 
cent administration  of  the  general  government,  to  the 
most  perfect  harmony  and  general  advancement  of  all. 
Perhaps  it  has  been  demonstrated,  (so  far  as  our  limited 
experience  goes,)  that  the  increased  facilities  of  inter- 

Abr.  22 


170         CONSTITUTION  OF  THE  U.  STATES.       [BOOK  III. 

course,  the  uniformity  of  regulations  and  laws,  the  com- 
mon protection,  the  mutual  sacrifices  of  local  interests, 
when  incompatible  with  that  of  the  nation,  and  the  pride 
and  confidence  in  a  government,  in  which  all  are  repre- 
sented, and  all  are  equal  in  rights  and  privileges  ;  per- 
haps, we  say,  it  has  been  demonstrated,  that  these  effects 
of  the  Union  have  promoted,  in  a  higher  degree,  the  pros- 
perity of  every  state,  than  could  have  been  attained  by 
any  single  state,  standing  alone,  in  the  freest  exercise 
of  all  its  intelligence,  its  resources,  and  its  institutions, 
without  any  check  or  obstruction  during  the  same  pe- 
riod. The  great  change,  which  has  been  made  in  our 
internal  condition,  as  w^ell  as  in  our  territorial  power,  by 
the  acquisition  of  Louisiana  and  Florida,  have,  indeed, 
given  rise  to  many  serious  reflections,  whether  such  an 
expansion  of  our  empire  may  not  hereafter  endanger 
the  original  system.  But  time  alone  can  solve  this  ques- 
tion ;  and  to  time  it  is  the  part  of  wisdom  and  patriot- 
ism to  leave  it. 

^  229.  The  union  of  these  states,  "  the  more  perfect 
union  "  is,  then,  and  must  for  ever  be  invaluable  to  all, 
in  respect  both  to  foreign  and  domestic  concerns.  It 
will  prevent  some  of  the  causes  of  war,  that  scourge  of 
the  human  race,  by  enabling  the  general  government, 
not  only  to  negotiate  suitable  treaties  for  the  protection 
of  the  rights  and  interests  of  all,  but  by  compelling  a 
general  obedience  to  them,  and  a  general  respect  for 
the  obligations  of  the  law  of  nations.  It  is  notorious, 
that  even  under  the  confederation,  the  obligations  of 
treaty  stipulations  were  openly  violated,  or  silently  dis- 
regarded ;  and  the  peace  of  the  whole  confederacy  was 
at  the  mercy  of  the  majority  of  any  single  state.  If 
the  states  were  separated,  they  would,  or  might,  form 
separate  and  independent  treaties  with  different  nations, 


CH.  VI.]  THE  PREAMBLE.  171 

according  to  their  peculiar  interests.  These  treaties 
would,  or  might,  involve  jealousies  and  rivalries  at 
home,  as  well  as  abroad,  and  introduce  conflicts  be- 
tween nations  struggling  for  a  monopoly  of  the  trade 
of  each  state.  Retaliatory  or  evasive  stipulations 
would  be  made,  to  counteract  the  injurious  system  of  a 
neighbouring  or  distant  state,  and  thus  the  scene  be 
again  acted  over  with  renewed  violence,  which  suc- 
ceeded the  peace  of  1 783,  when  the  common  interests 
were  forgotten  in  the  general  struggle  for  superiority. 
It  would  manifestly  be  the  interest  of  foreign  nations  to 
promote  these  animosities  and  jealousies,  that  in  the 
general  weakness  the  states  might  seek  their  protec- 
tion by  an  undue  sacrifice  of  their  own  interests,  or  fall 
an  easy  prey  to  their  arms. 

§  230.  The  dangers,  too,  to  all  the  states,  in  case  of 
division,  from  foreign  wars  and  invasion,  must  be  im- 
minent, independent  of  those  from  the  neighbourhood 
of  the  colonies  and  dependencies  of  other  governments 
on  this  continent.  Their  very  weakness  would  invite 
aggression.  The  ambition  of  the  European  govern- 
ments, to  obtain  a  mastery  of  power  in  colonies  and 
distant  possessions,  would  be  perpetually  involving 
them  in  embarrassing  negotiations  or  conflicts,  however 
peaceable  might  be  their  own  conduct,  and  however 
inoffensive  their  own  pursuits  and  objects.  America, 
as  of  old,  would  become  the  theatre  of  warlike  opera- 
tions, in  which  she  had  no  interests  ;  and  with  a  view 
to  their  own  security,  the  states  would  be  compelled  to 
fall  back  into  a  general  colonial  submission,  or  sink  into 
dependencies  of  such  of  the  great  European  powers, 
as  might  be  most  favorable  to  their  interests,  or  most 
commanding  over  their  resources. 


172  CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 

^231  There  are  also  peculiar  interests  of  some  of 
the  states,  which  would,  upon  a  separation,  be  wholly 
sacrificed,  or  become  the  source  of  immeasurable  ca- 
lamities. The  New-England  states  have  a  vital  interest 
in  the  fisheries  with  their  rivals,  England  and  France  ; 
and  how  could  New-England  resist  either  of  these  pow- 
ers in  a  struggle  for  the  common  right,  if  it  should  be 
attempted  to  be  restrained  or  abolished  ?  What  would 
become  of  Maryland  and  Virginia,  if  the  Chesapeake 
were  under  the  dominion  of  different  foreign  powers 
de  facto,  though  not  in  form '?  The  free  navigation  of 
the  Mississippi  and  the  lakes,  and  it  may  be  added,  the 
exclusive  navigation  of  them,  seems  indispensable  to 
the  security,  as  well  as  the  prosperity  of  the  western 
states.  How  otherwise  than  by  a  general  union,  could 
this  be  maintained  or  guarantied  ? 

§  232.  And  again,  as  to  commerce,  so  important  to 
the  navigating  states,  and  so  productive  to  the  agricul- 
tural states,  it  must  be  at  once  perceived,  that  no  ade- 
quate protection  could  be  given  to  either,  unless  by  the 
strong  and  uniform  operations  of  a  general  government. 
Each  state  by  its  own  regulations  would  seek  to  pro- 
mote its  own  interests,  to  the  ruin  or  injury  of  those  of 
others.  The  relative  situation  of  these  states ;  the 
number  of  rivers,  by  which  they  are  intersected,  and  of 
bays,  that  wash  their  shores  ;  the  facility  of  communi- 
cation in  every  direction ;  the  affinity  of  language  and 
manners  ;  the  familiar  habits  of  intercourse  ;  all  these 
circumstances  would  conspire  to  render  an  illicit  trade 
between  them  matter  of  Httle  difficulty,  and  would  in- 
sure frequent  evasions  of  the  commercial  regulations  of 
each  other.  All  foreign  nations  would  have  a  common 
interest  in  crippling  us  ;  and  all  the  evils  of  colonial 
servitude,  and  commercial  monopoly  would  be  inflicted 


CH.  VI.]  THE  PREAMBLE.  173 

upon  us,  by  the  hands  of  our  own  kindred  and  neigh- 
bours. But  this  topic,  though  capable  of  being  pre- 
sented in  detail  from  our  past  experience  in  such  glow- 
ing colours,  as  to  startle  the  most  incredulous  into  a 
conviction  of  the  ultimate  poverty,  wretchedness,  and 
distress,  which  would  overwhelm  every  state,  does  not 
require  to  be  more  than  hinted  at.  We  have  already 
seen  in  our  former  examination  of  the  defects  of  the 
confederation,  that  every  state  was  ruined  in  its  reve- 
nues, as  well  as  in  its  commerce,  by  the  w^ant  of  a  more 
efficient  government. 

§  233.  Nor  should  it  be  imagined,  that  however  in- 
jurious to  commerce,  the  evils  would  be  less  in  respect 
to  domestic  manufactures  and  agriculture.  In  respect 
to  manufactures,  the  truth  is  so  obvious,  that  it  requires 
no  argument  to  illustrate  it.  In  relation  to  the  agricul- 
tural states,  however,  an  opinion  has,  at  some  times 
and  in  some  sections  of  the  country,  been  prevalent, 
that  the  agricultural  interests  would  be  equally  safe 
without  any  general  government.  The  following, 
among  other  considerations,  may  serve  to  show  the 
fallacy  of  all  such  suggestions.  A  large  and  uniform 
market  at  home  for  native  productions  has  a  tendency 
to  prevent  those  sudden  rises  and  falls  in  prices,  which 
are  so  deeply  injurious  to  the  farmer  and  the  planter. 
The  exclusive  possession  of  the  home  market  against 
all  foreign  competition  gives  a  permanent  security  to 
investments,  which  slowly  yield  their  returns,  and  en- 
courages the  laying  out  of  capital  in  agricultural  im- 
provements. Suppose  cotton,  tobacco,  and  wheat 
w^ere  at  all  times  admissible  from  foreign  states  without 
duty,  would  not  the  effect  be  permanently  to  check 
any  cultivation  beyond  what  at  the  moment  seems  sure 
of  a  safe  sale  ?     Would  not  foreign  nations  be  perpet- 


174  CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

ually  tempted  to  send  their  surplus  here,  and  thus, 
from  time  to  time,  depress  or  glut  the  home  market  ? 

§  234.  Again  ;  the  neighbouring  states  would  often 
engage  in  the  same  species  of  cultivation  ;  and  yet  with 
very  different  natural,  or  artificial  means  of  making  the 
products  equally  cheap.  This  inequality  would  imme- 
diately give  rise  to  legislative  measures  to  correct  the 
evil,  and  to  secure,  if  possible,  superior  advantages 
over  the  rival  state.  This  would  introduce  endless 
crimination  and  retaliation,  laws  for  defence,  and  laws 
for  offence.  Smuggling  would  be  every  where  openly 
encouraged,  or  secretly  connived  at.  The  vital  inter- 
ests of  a  state  would  lie  in  many  instances  at  the  mercy 
of  its  neighbours,  who  might,  at  the  same  time,  feel, 
that  their  own  interests  were  promoted  by  the  ruin  of 
their  neighbours.  And  the  distant  states,  knowing 
that  their  own  w^ants  and  pursuits  were  wholly  disre- 
garded, would  become  willing  auxiliaries  in  any  plans 
to  encourage  cultivation  and  consumption  elsewhere. 
Such  is  human  nature !  Such  are  the  infirmities,  which 
history  severely  instructs  us  belong  to  neighbours  and 
rivals ;  to  those,  who  navigate,  and  those,  who  plant ;  to 
those,  who  desire,  and  those,  who  repine  at  the  pros- 
perity of  surrounding  states. 

^  235.  Again ;  foreign  nations,  under  such  circum- 
stances, must  have  a  common  interest,  as  carriers,  to 
bring  to  the  agricultural  states  their  own  manufactures, 
at  as  dear  a  rate  as  possible,  and  to  depress  the  market 
of  the  domestic  products  to  the  minimum  price  of  com- 
petition. They  must  have  a  common  interest  to  stim- 
ulate the  neighbouring  states  to  a  ruinous  jealousy  ;  or 
by  fostering  the  interests  of  one,  with  whom  they  can 
deal  upon  more  advantageous  terms,  or  over  whom 
they  have  acquired  a  decisive  influence,  to  subject  to  a 


CH  VI.]  THE  PREAMBLE.  175 

corresponding  influence  others,  which  struggle  for  an 
independent  existence.  This  is  not  mere  theory. 
Examples,  and  successful  examples  of  this  policy,  may 
be  traced  throughout  the  period  between  the  peace  of 
1783  and  the  adoption  of  the  constitution. 

§  236.  But  not  to  dwell  farther  on  these  important 
inducements  "  to  form  a  more  perfect  union,"  let  us 
pass  to  the  next  object,  which  is  to  "  establish  justice." 
This  must  for  ever  be  one  of  the  great  ends  of  every 
wise  government ;  and  even  in  arbitrary  governments 
it  must,  to  a  great  extent,  be  practised,  at  least  in  re- 
spect to  private  persons,  as  the  only  security  against 
rebellion,  private  vengeance,  and  popular  cruelty.  But 
in  a  free  government  it  lies  at  the  very  basis  of  all  its 
institutions.  Without  justice  being  freely,  fully,  and 
impartially  administered,  neither  our  persons,  nor  our 
rights,  nor  our  property,  can  be  protected.  And  if 
these,  or  either  of  them,  are  regulated  by  no  certain 
laws,  and  are  subject  to  no  certain  principles,  and  are 
held  by  no  certain  tenure,  and  are  redressed,  when 
violated,  by  no  certain  remedies,  society  fails  of  all  its 
value ;  and  men  may  as  well  return  to  a  state  of  sav- 
age and  barbarous  independence.  No  one  can  doubt, 
therefore,  that  the  establishment  of  justice  must  be  one 
main  object  of  all  our  state  governments.  Why,  then, 
may  it  be  asked,  should  it  form  so  prominent  a  motive 
in  the  establishment  of  the  national  government  7 

§  237.  This  is  now  proposed  to  be  shown  in  a  con- 
cise manner.  In  the  administration  of  justice,  foreign 
nations,  and  foreign  individuals,  as  well  as  citizens,  have 
a  deep  stake  ;  but  the  former  have  not  always  as  com- 
plete means  of  redress  as  the  latter ;  for  it  may  be  pre- 
sumed, that  the  state  laws  will  always  provide  ade- 
quate tribunals  to  redress  the  grievances  and  sustain 


176  COJ^STITUTIOJSr  of  the  U.  states.      [book  III* 

the  rights  of  their  own  citizens.  But  this  would  be  a 
very  imperfect  view  of  the  subject.  Citizens  of  con- 
tiguous states  have  a  very  deep  interest  in  the  admin- 
istration of  justice  in  each  state  ;  and  even  those,  which 
are  more  distant,  but  belonging  to  the  same  confede- 
racy, cannot  but  be  affected  by  every  inequality  in  the 
provisions,  or  in  the  actual  operations  of  the  laws  of  each 
other.  While  every  state  remains  at  full  liberty  to 
legislate  upon  the  subject  of  rights,  preferences,  con- 
tracts, and  remedies,  as  it  may  please,  it  is  scarcely  to 
be  expected,  that  they  will  all  concur  in  the  same  gen- 
eral system  of  policy.  The  natural  tendency  of  every 
government  is  to  favour  its  own  citizens ;  and  unjust 
preferences,  not  only  in  the  administration  of  justice, 
but  in  the  very  structure  of  the  laws,  may  reasonably 
be  expected  to  arise.  Popular  prejudices,  or  passions, 
supposed  or  real  injuries,  the  predominance  of  home 
pursuits  and  feelings  over  the  comprehensive  views  of 
a  hberal  jurisprudence,  will  readily  achieve  the  most 
mischievous  projects  for  this  purpose.  And  these, 
again,  by  a  natural  reaction,  will  introduce  correspon- 
dent regulations,  and  retaliatory  measures  in  other 
states. 

§  238.  JN'ow,  exactly  what  this  course  of  reasoning" 
would  lead  us  to  presume  as  probable,  has-been  demon- 
strated by  experience  to  be  true  in  respect  to  our  own 
confederacy,  during  the  short  period  of  its  existence, 
and  under  circumstances  well  calculated  to  induce 
each  state  to  sacrifice  many  of  its  own  objects  for  the 
general  good.  Nay,  even  when  we  were  colonies, 
dependent  upon  the  authority  of  the  mother  country, 
these  inequalities  were  observable  in  the  local  legisla- 
tion of  several  of  the  states,  and  produced  heart-burn- 
ings and  discontents,  which  were  not  easily  appeased. 


CH.  VI.]  THE  PREAMBLE.  177 

§  239.  First,  in  respect  to  foreign  nations.  After 
the  confederacy  was  formed,  and  we  had  assumed  the 
general  rights  of  war  as  a  sovereign  belligerent  nation, 
authority  to  make  captures,  and  to  bring  in  ships  and 
cargoes  for  adjudication  naturally  flowed  from  the 
proper  exercise  of  these  rights  by  the  law  of  nations. 
The  states  respectively  retained  the  power  of  appoint- 
ing prize  tribunals,  to  take  cognizance  of  these  matters 
in  the  first  instance ;  and  thus  thirteen  distinct  juris- 
dictions were  established,  which  acted  entirely  inde- 
pendent of  each  other.  It  is  true,  that  the  articles  of 
confederation  had  delegated  to  the  general  government 
the  authority  of  estabhshing  courts  for  receiving  and 
determining,  finally,  appeals  in  all  cases  of  captures. 
Congress  accordingly  instituted  proper  appellate  tri- 
bunals, to  which  the  state  courts  were  subordinate, 
and,  upon  constitutional  principles,  were  bound  to  yield 
obedience.  But  it  is  notorious,  that  the  decisions  of 
the  appellate  tribunals  w^ere  disregarded,  and  treated 
as  mere  nullities,  for  no  power  to  enforce  them  was 
lodged  in  congress.  They  operated,  therefore,  merely 
by  moral  influence  and  requisition,  and,  as  such,  soon 
sunk  into  insignificance.  Neutral  individuals,  as  well 
as  neutral  nations,  were  left  wholly  without  any  ade- 
quate redress  for  the  most  inexcusable  injustice,  and 
the  confederacy  was  subjected  to  imminent  hazards. 
Until  the  constitution  of  the  United  States  was  estab- 
lished, no  remedy  was  ever  effectually  administered. 
Treaties,  too,  were  formed  by  congress  with  various 
nations ;  and  above  all,  the  treaty  of  peace  of  1 783, 
which  gave  complete  stability  to  our  independence 
against  Great  Britain.  These  treaties  were,  by  the 
theory  of  the  confederation,  absolutely  obligatory  upon 
all  the  states.     Yet  their  provisions  were  notoriously 

Abr.  23 


A. 


178  CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 

violated  both  by  state  legislation  and  state  judicial  tri- 
bunals. The  non-fulfilment  of  the  stipulations  of  the 
British  treaty  on  our  part  more  than  once  threatened 
to  involve  the  whole  country  again  in  war.  And  the 
provision  in  that  treaty  for  the  payment  of  British  debts 
was  practically  disregarded  in  many,  if  not  in  all  the 
state  courts.  These  debts  never  were  enforced,  until 
the  constitution  gave  them  a  direct  and  adequate  sanc- 
tion, independently  of  state  legislation  and  state 
courts. 

§  240.  Besides  the  debts  due  to  foreigners,  and  the 
obligations  to  pay  the  same,  the  public  debt  of  the 
United  States  was  left  utterly  unprovided  for ;  and  the 
officers  and  soldiers  of  the  revolution,  who  had  achiev- 
ed our  independence,  were,  as  we  have  had  occasion 
to  notice,  suffered  to  languish  in  want,  and  their  just 
demands  evaded,  or  passed  by  with  indifference.  No 
efficient  system  to  pay  the  public  creditors  was  ever 
carried  into  operation,  until  the  constitution  was  adopt- 
ed ;  and,  notwithstanding  the  increase  of  the  public 
debt,  occasioned  by  intermediate  wars,  it  is  now  on  the 
very  eve  of  a  total  extinguishment. 

§  241.  These  evils,  whatever  might  be  their  magni- 
tude, did  not  create  so  universal  a  distress,  or  so  much 
private  discontent,  as  others  of  a  more  domestic  nature, 
which  were  subversive  of  the  first  principles  of  justice. 
Independent  of  the  unjustifiable  preferences,  which 
were  fostered  in  favour  of  citizens  of  the  state  over 
those  belonging  to  other  states,  which  were  not  few, 
nor  slight,  there  were  certain  calamities  inflicted  by  the 
common  course  of  legislation  in  most  of  the  states, 
which  went  to  the  prostration  of  all  public  faith  and  all 
private  credit.  Laws  were  constantly  made  by  the 
»state  legislatures  violating,  with  more  or  less  degrees 


CH.  VI.]  THE  PREAMBLE.  179 

of  aggravation,  the  sacredness  of  private  contracts. 
Laws  compelling  the  receipt  of  a  depreciated  and  de- 
preciating paper  currency  in  payment  of  debts  were 
generally,  if  not  universally,  prevalent.  Laws  author- 
izing the  payment  of  debts  by  instalments,  at  periods 
differing  entirely  from  the  original  terms  of  the  con- 
tract ;  laws,  suspending,  for  a  hmited  or  uncertain  pe- 
riod, the  remedies  to  recover  debts  in  the  ordinary 
course  of  legal  proceedings  ;  laws  authorizing  the  de- 
livery of  any  sort  of  property,  however  unproductive  or 
undesirable,  in  payment  of  debts  upon  an  arbitrary  or 
friendly  appraisement ;  laws  shutting  up  the  courts  for 
certain  periods  and  under  certain  circumstances ;  were 
not  infrequent  upon  the  statute  books  of  many  of  the 
states  now  composing  the  Union.  In  the  rear  of  all 
these  came  the  systems  of  general  insolvent  laws,  some 
of  which  were  of  a  permanent  nature,  and  others  again 
were  adopted  upon  the  spur  of  the  occasion,  like  a  sort 
of  gaol  deUvery  under  the  Lords'  Acts  in  England,  which 
had  so  few  guards  against  frauds  of  every  kind  by  the 
debtor,  that  in  practice  they  amounted  to  an  absolute 
discharge  from  every  debt,  without  any  thing  more  than 
a  nominal  dividend;  and  sometimes  even  this  vain 
mockery  was  dispensed  with.  In  short,  by  the  opera- 
tions of  paper  currency,  tender  laws,  instalment  laws, 
suspension  laws,  appraisement  laws,  and  insolvent  laws, 
contrived  with  all  the  dexterous  ingenuity  of  men  op- 
pressed by  debt,  and  popular  by  the  very  extent  of 
private  embarrassments,  the  states  were  almost  univer- 
sally plunged  into  a  ruinous  poverty,  distrust,  debihty, 
and  indifference  to  justice.  The  local  tribunals  were 
bound  to  obey  the  legislative  will ;  and  in  the  few  in- 
stances, in  which  it  was  resisted,  the  independence  of 
the  judges  was  sacrificed  to  the  temper  of  the  times. 


180  CONSTITUTION  OF  THE  U.   STATES.      [bOOK  III. 

It  is  well  known,  that  Shays's  rebellion  in  Massachu- 
setts took  its  origin  from  this  source.  The  object  was 
to  prostrate  the  regular  administration  of  justice  by  a 
system  of  terror,  which  should  prevent  the  recovery  of 
debts  and  taxes. 

^  242.  So,  that  we  see  completely  demonstrated  by 
our  own  history  the  importance  of  a  more  effectual 
establishment  of  justice  under  the  auspices  of  a  national 
government. 
^  ^  243.  The  next  clause  in  the  preamble  is  "  to  en- 
sure domestic  tranquillity."  The  illustrations  appro- 
priate to  this  head  have  been  in  a  great  measure  antici- 
pated in  our  previous  observations.  The  security  of 
the  states  against  foreign  influence,  domestic  dissen- 
sions, commercial  rivalries,  legislative  retaliations,  ter- 
ritorial disputes,  and  the  petty  irritations  of  a  border 
warfare  for  privileges,  exemptions,  and  smuggling,  have 
been  already  noticed.  The  very  habits  of  intercourse, 
to  which  the  states  were  accustomed  with  each  other 
during  their  colonial  state,  would,  as  has  been  justly 
remarked,  give  a  keener  edge  to  every  discontent  ex- 
cited by  any  inequalities,  preferences,  or  exclusions, 
growing  out  of  the  public  policy  of  any  of  them. 
These,  however,  are  not  the  only  evils.  In  small  com- 
munities domestic  factions  may  well  be  expected  to 
arise,  which,  when  honest,  may  lead  to  the  most  perni- 
cious public  measures ;  and  when  corrupt,  to  domestic 
insurrections,  and  even  to  an  overthrow  of  the  govern- 
ment. The  dangers  to  a  republican  government  from  this 
source  have  been  dwelt  upon  by  the  advocates  of  ar- 
bitrary government  with  much  exultation  ;  and  it  must 
be  confessed,  that  the  history  of  free  governments  has 
furnished  but  too  many  examples  to  apologize  for, 
though  not  to  justify  their  arguments,  urged  not  only 


CH.  VI.]  THE  PREAMBLE.  181 

against  the  forms  of  republican  government,  but  against 
the  principles  of  civil  liberty.  They  have  pointed  out 
the  brief  duration  of  republics,  the  factions,  by  which 
they  have  been  rent,  and  the  miseries,  which  they  have 
suffered  from  distracted  councils,  and  time-serving 
policy,  and  popular  fury,  and  corruption,  in  a  manner 
calculated  to  increase  the  solicitude  of  every  well-wish- 
er to  the  cause  of  rational  liberty.  And  even  those, 
who  are  most  favourable  in  their  views,  seem  to  have 
thought,  that  the  experience  of  the  world  had  never  yet 
furnished  any  conclusive  proofs  in  its  support.  We 
know  but  too  well,  that  factions  have  been  the  special 
growth  of  republics.  By  a  faction,  we  are  to  under- 
stand a  number  of  citizens,  whether  amounting  to  a 
minority  or  majority  of  the  whole,  who  are  united  by 
some  common  impulse  or  passion,  or  interest,  or  party, 
adverse  to  the  rights  of  the  other  citizens,  or  to  the 
permanent  and  aggregate  interests  of  the  community. 
^  244.  There  are  but  two  methods  of  curing  the 
mischiefs  of  faction ;  the  one,  by  removing  its  causes, 
which,  in  a  free  government,  is  impracticable  without 
the  destruction  of  hberty  ;  the  other,  by  controling  its 
effects.  If  a  faction  be  a  minority,  the  majority  may 
apply  the  proper  corrective,  by  defeating  or  checking 
the  violence  of  the  minority  in  the  regular  course  of 
legislation.  In  small  states,  however,  this  is  not  always 
easily  attainable,  from  the  difficulty  of  combining  in  a 
permanent  form  sufficient  influence  for  this  purpose. 
A  feeble  domestic  faction  will  naturally  avail  itself,  not 
only  of  all  accidental  causes  of  dissatisfaction  at  home, 
but  also  of  all  foreign  aid  and  influence  to  carry  its  pro- 
jects. And,  indeed,  in  the  gradual  operations  of  fac- 
tions, so  many  combinations  are  formed  and  dissolved, 
so  many  private  resentments  become  embodied  in  pub- 


183  CONSTITUTION  OF  THE  U.  STATES.     [bOOK  III. 

lie  measures,  and  success  and  triumph  so  often  follow 
after  defeat,  that  the  remnants  of  different  factions, 
which  have  had  a  brief  sway,  however  hostile  to  each 
other,  have  an  interest  to  unite  in  order  to  put  down 
their  rivals.  But  if  the  faction  be  a  majority,  and  stand 
unchecked,  except  by  its  own  sense  of  duty,  or  its  own 
fears,  the  dangers  are  imminent  to  all  those,  whose 
principles,  or  interests,  or  characters  stand  in  the  way 
of  its  supreme  dominion. 

^  245.  These  evils  are  felt  in  great  states  ;  but  it  has 
been  justly  observed,  that  in  small  states  they  are  far 
more  aggravated,  bitter,  cruel,  and  permanent.  The 
most  effectual  means  to  control  such  effects  seem  to  be 
in  the  formation  of  a  confederate  republic,  consisting  of 
several  states.  It  will  be  rare,  under  such  circum- 
stances, if  proper  powers  are  confided  to  the  general 
government,  that  the  state  line  does  not  form  the  nat- 
ural, as  it  will  the  jurisdictional  boundary  of  the  opera- 
tions of  factions.  The  authority  of  the  general  govern- 
ment will  have  a  natural  tendency  to  suppress  the  vio- 
lence of  faction,  by  diminishing  the  chances  of  ultimate 
success ;  and  the  example  of  the  neighbouring  states, 
who  will  rarely,  at  the  same  time,  partake  of  the  same 
feelings,  or  have  the  same  causes  to  excite  them  into 
action,  will  mitigate,  if  it  does  not  wholly  Ssarm,  the 
violence  of  the  predominant  faction. 

^  246.  We  now  proceed  to  the  next  clause  in  the 
preamble,  to  "  provide  for  the  common  defence."  And 
many  of  the  considerations  already  stated  apply  with 
still  greater  force  under  this  head.  One  of  the  surest 
means  of  preserving  peace  is  said  to  be,  by  being 
always  prepared  for  war.  But  a  still  more  sure  means 
is  the  power  to  repel,  with  effect,  every  aggression. 
That  power  can  scarcely  be  attained  without  a  wide 


CH.  VI.]  THE    PREAMBLE.  183 

extent  of  population,  and  at  least  a  moderate  extent  of 
territory.  A  country,  which  is  large  in  its  limits,  even 
if  thinly  peopled,  is  not  easily  subdued.  Its  variety  of 
soil  and  climate,  its  natural  and  artificial  defences,  nay, 
its  very  poverty  and  scantiness  of  suppUes,  make  it  diffi- 
cult to  gain,  or  to  secure  a  permanent  conquest.  It  is 
far  easier  to  overrun,  than  to  subdue  it.  Armies  must 
be  divided,  distant  posts  must  be  maintained,  and  chan- 
nels of  supplies  kept  constantly  open.  But  where  the 
territory  is  not  only  large,  but  populous,  permanent  con- 
quest can  rarely  occur,  unless  (which  is  not  our  case) 
there  are  very  powerful  neighbours  on  every  side,  hav- 
ing a  common  interest  to  assist  each  other,  and  to  sub- 
jugate their  enemy.  It  is  far  otherwise,  where  there 
are  many  rival  and  independent  states,  having  no  com- 
mon union  of  government  or  interests.  They  are  half 
subdued  by  their  own  dissensions,  jealousies,  and  re- 
sentments before  the  conflict  is  begun.  They  are  easily 
made  to  act  a  part  in  the  destruction  of  each  other,  or 
easily  fall  a  prey  for  want  of  proper  concert  and  energy 
of  operations. 

§  247.  Besides; — The  resources  of  a  confederacy 
must  be  far  greater  than  those  of  any  single  state  be- 
longing to  it,  both  for  peace  and  war.  It  can  com- 
mand a  wider  range  of  revenue,  of  military  power,  of 
naval  armaments,  and  of  productive  industry.  It  is 
more  independent  in  its  employments,  in  its  capacities, 
and  in  its  influences.  In  the  present  state  of  the  world, 
a  few  great  powers  possess  the  command  of  commerce, 
both  on  land  and  at  sea.  In  war,  they  trample  upon 
the  rights  of  neutrals,  who  are  feeble ;  for  their  weak- 
ness furnishes  an  excuse  both  for  servility  and  disdain. 
In  peace,  they  control  the  pursuits  of  the  rest  of  the 
world,  and  force  their  trade  into  every  channel  by  the 


v»' 


184         CONSTITUTION  OF  THE  U,  STATES.      [bOOK  III. 

activity  of  their  enterprise,  their  extensive  navigation, 
and  their  flourishing  manufactures.  They  httle  regard 
the  complaints  of  those,  vi^ho  are  subdivided  into  petty 
states  with  varying  interests ;  and  use  them  only  as  in- 
struments to  annoy  or  check  the  enterprise  of  each 
other.  Such  states  are  not  formidable  in  peace  or  in 
war.  To  secure  their  rights  and  maintain  their  inde- 
pendence they  must  become  a  confederated  nation,  and 
speak  with  the  force  of  numbers,  as  well  as  the  elo- 
quence of  truth.  The  navy  or  army,  which  could  be 
maintained  by  any  single  state  in  the  Union,  would  be 
scarcely  formidable  to  any  second  rate  power  in  Europe. 
It  would  be  a  grievous  public  burthen,  and  exhaust  the 
whole  resources  of  the  state.  But  a  navy  or  army  for 
all  the  purposes  of  home  defence,  or  protection  upon 
the  ocean,  is  within  the  compass  of  the  resources  of  the 
general  government,  without  any  severe  exaction.  And 
with  the  growing  strength  of  the  Union  must  be  at  once 
more  safe  for  us,  and  more  formidable  to  foreign  nations. 
The  means,  therefore,  to  provide  for  the  common  de- 
fence are  ample ;  and  they  can  only  be  rendered  inert 
and  inadequate  by  a  division  among  the  states,  and  a 
want  of  unity  of  operations. 

^  248.  We  pass,  in  the  next  place,  to  the  clause  to 
"  promote  the  general  welfare."  And  it  may  be  asked, 
as  the  state  governments  are  formed  for  the  same  pur- 
pose by  the  people,  why  should  this  be  set  forth,  as  a 
peculiar  or  prominent  object  of  the  constitution  of  the 
United  States?  To  such  an  inquiry  two  general  an- 
swers may  be  given.  (1.)  The  states,  separately,  would 
not  possess  the  means.  (2.)  If  they  did  possess  the 
means,  they  would  not  possess  the  power  to  carry  the 
appropriate  measures  into  operation. 


CH.  VI.]  THE    PREAMBLE.  186 

^  249.  First,  in  respect  to  means.     It  is  obvious  from 
the  local  position  and  size  of  several  of  the  states,  that 
they  must  for  ever  possess  but  a  moderate  revenue,  not 
more  than  what  is  indispensable  for  their  own  wants, 
and,  in  the  strictest  sense,  for  domestic  improvements. 
In  relation  to  others  more  favourably  situated  for  com- 
merce and  navigation,  the  revenues  from  taxation  may 
be  larger ;  but  the  main  rehance  must  be  placed  upon 
the  taxation  by  way  of  imposts    upon   importations. 
Now,  it  is  obvious,  from  the  remarks  already  made,  that 
no  permanent  revenue  can  be  raised  from  this  source, 
when  the  states  are  separated.     The  evasions  of  the 
laws,  which  will  constantly  take  place  from  the  rivalries, 
and  various  interests  of  the  neighbouring  states ;  the 
facilities  afforded  by  the  numerous  harbours,  rivers,  and 
bays,  which  indent  and  intersect  our  coasts ;  the  strong 
interest  of  foreigners  to  promote  smuggling ;  the  want 
of  uniformity  in  the  duties  laid  by  the  different  states ; 
the  means  of  intercourse  along  the  internal  territorial 
boundaries  of  the  commercial  states ;  these,  and  many 
other  causes,  would  inevitably  lead  to  a  very  feeble  ad- 
ministration of  any  local  revenue  system,  and  would 
make  its  returns  moderate  and  unsatisfactory.     What 
could  New-York  do  with  a  single  sea-port,  surrounded 
on  each  side  by  jealous  maritime  neighbours  with  nu- 
merous ports  1     What  could  Massachusetts,  or  Con- 
necticut do  with  the  intermediate  territory  of  Rhode- 
Island,  running  into  the  heart  of  these  states  by  water 
communications  admirably  adapted  for  the  security  of 
illicit  trade?     What  could  Maryland,  or  Virginia  do 
with  the  broad  Chesapeake  between   them  with  its 
thousand  landing  places?     What  could  Pennsylvania 
oppose  to  the  keen  resentments,  or  the  facile  policy  of 
her  weaker  neighbour,  Delaware  ?     What  could  any 
Abr.  24 


186  CONSTITUTION  OF  THE  U.  STATES.       [bOOK    III. 

single  state  on  the  Mississippi  do  to  force  a  steady  trade 
for  itself  with  adequate  protecting  duties?  In  short, 
turn  to  whichever  part  of  the  continent  we  may,  the 
difficulties  of  maintaining .  an  adequate  system  of  rev- 
enue would  be  insurmountable,  and  the  expenses  of  col- 
lecting it  enormous.  After  some  few  struggles  for  uni- 
formity, and  co-operation  for  mutual  support,  each  state 
would  sink  back  into  Ustless  indifference  or  gloomy  des- 
pondency ;  and  rely,  principally,  upon  direct  taxation 
for  its  ordinary  supplies.  The  experience  of  the  few 
years  succeeding  the  peace  of  1783  fully  justifies  the 
worst  apprehensions  on  this  head. 

§  250.  On  the  other  hand,  a  general  government, 
clothed  with  suitable  authority  over  all  the  states,  could 
easily  guard  the  whole  Atlantic  coast,  and  make  it  the 
interest  of  all  honourable  merchants  to  assist  in  a  regular 
and  punctilious  payment  of  duties.  Vessels  arriving  at 
different  ports  of  the  Union  would  rarely  choose  to  ex- 
pose themselves  to  the  perils  of  seizure,  not  in  a  single 
state  only,  but  in  every  state,  into  which  the  goods 
might  be  successively  imported.  The  dangers  upon 
the  coast,  from  the  vigilant  operations  of  the  revenue 
officers  and  revenue  vessels,  would  be  great ;  and  they 
would  be  much  enhanced  by  the  expenses  of  conceal- 
ment after  the  goods  were  landed.  And  the  fact  has 
corresponded  with  the  theory.  Since  the  establishment 
of  the  national  government,  there  has  been  compara- 
tively little  smuggling  on  our  coasts ;  and  the  revenue 
from  the  duties  upon  importations  has  steadily  increas- 
ed with  the  developement  of  the  other  resources  of  the 
country. 

§  251.  But  the  fact  alone  of  an  unlimited  inter- 
course, without  duty  or  restriction,  between  all  the 
states,  is  of  itself  a  blessing  of   ahnost  inconceivable 


CH.  VI.]  THE    PREAMBLE.  187 

value.  It  makes  it  an  object  with  each  permanently  to 
look  to  the  interests  of  all,  and  to  withdraw  its  opera- 
tions from  the  narrow  sphere  of  its  own  exclusive  terri- 
tory. Without  entering  here  into  the  inquiry,  how  far 
the  general  government  possesses  the  power  to  make, 
or  aid  in  the  making  of  roads,  canals,  and  other  general 
improvements,  which  will  properly  arise  in  our  future 
discussions,  it  is  clear,  that,  if  there  were  no  general 
government,  the  interest  of  each  state  to  undertake,  or 
to  promote  in  its  own  legislation  any  such  project,  would 
be  far  less  strong,  than  it  now  is  ;  since  there  would  be 
no  certainty,  as  to  the  value  or  duration  of  such  im- 
provements, looking  beyond  the  boundaries  of  the  state. 
The  consciousness,  that  the  Union  of  the  states  is  per- 
manent, and  will  not  be  broken  up  by  rivalries,  or  con- 
flicts of  policy,  that  caprice,  or  resentment,  will  not  di- 
vert any  state  from  its  proper  duties,  as  a  member  of 
the  Union,  will  give  a  soHd  character  to  all  improve- 
ments. Independent  of  the  exercise  of  any  authority 
by  the  general  government  for  this  purpose,  it  was  justly 
foreseen,  that  roads  would  be  every  where  shortened 
and  kept  in  better  order;  accommodations  for  travellers 
would  be  multipUed  and  meliorated ;  an  interior  navi- 
gation on  our  eastern  side  would  be  opened  throughout 
the  whole  extent  of  our  coast ;  and,  by  canals  and  im- 
provements in  river  navigation,  a  boundless  field  open- 
ed to  enterprise  and  emigration,  to  commerce  and  pro- 
ducts, through  the  interior  states,  to  the  farthest  Umits 
of  our  western  territories. 

^  252.  Independent  of  these  means  of  promoting  the 
general  welfare,  we  shall  at  once  see,  in  our  negotia- 
tions with  foreign  powers,  the  vast  superiority  of  a  na- 
tion combining  numbers  and  resources  over  states  of 
small  extent,  and  divided  by  different  interests.     If  we 


188    CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III, 

are  to  negotiate  for  commercial  or  other  advantages, 
the  national  government  has  more  authority  to  speak, 
as  well  as  more  power  to  influence,  than  can  belong  to 
a  single  state.  It  has  more  valuable  privileges  to  give 
in  exchange,  and  more  means  of  making  those  privi- 
leges felt  by  prohibitions,  or  relaxations  of  its  commer- 
cial legislation.  Is  money  wanted ;  how  much  more 
easy  and  cheap  to  borrow  upon  the  faith  of  a  nation 
competent  to  pay,  than  of  a  single  state  of  fluctuating 
policy.  Is  confidence  asked  for  the  faithful  fulfilment 
of  treaty  stipulations  ;  how  much  more  strong  the  guar- 
anty of  the  Union  with  suitable  authorities,  than  any 
pledge  of  an  individual  state.  Is  a  currency  wanted  at 
once  fixed  on  a  solid  basis,  and  sustained  by  adequate 
sanctions  to  enlarge  public  or  private  credit ;  how  much 
more  decisive  is  the  legislation  of  the  Union,  than  that 
of  a  single  state,  with  a  view^  to  extent,  or  uniformity  of 
operations. 

§  253.  Thus  we  see,  that  the  national  government, 
suitably  organized,  has  more  eflficient  means,  and  more 
extensive  jurisdiction  to  promote  the  general  welfare, 
than  can  belong  to  any  single  state  of  the  confederacy. 
And  there  is  much  truth  in  the  suggestion,  that  it  will 
generally  be  directed  by  a  more  enlightened  policy,  a 
more  liberal  justice,  and  more  comprehensive  wisdom, 
in  the  application  of  its  means  and  its  powers  to  their 
appropriate  end.  Generally  speaking,  it  will  be  better 
administered ;  because  it  will  command  higher  talents, 
more  extensive  experience,  more  practical  knowledge, 
and  more  various  information  of  the  wants  of  the  whole 
community,  than  can  belong  to  smaller  societies.  The 
wider  the  sphere  of  action,  the  less  reason  there  is  to 
presume,  that  narrow  views,  or  local  prejudices  will 
prevail  in  the  public  councils.    The  very  diversities  of 


CH.  VI.]  THE    PREAMBLE.  189 

opinion  in  the  different  representatives  of  distant  re- 
gions will  have  a  tendency,  not  only  to  introduce  mu- 
tual concession  and  conciliation,  but  to  elevate  the  poli- 
cy, and  instruct  the  judgment  of  those,  who  are  to  di^ 
rect  the  public  measures. 

§  254.  The  last  clause  in  the  preamble  is  to  "  secure 
the  blessings  of  liberty  to  ourselves  and  our  posterity." 
And  surely  no  object  could  be  more  worthy  of  the  wis- 
dom and  ambition  of  the  best  men  in  any  age.  If  there 
is  any  thing,  which  may  justly  challenge  the  admira- 
tion of  all  mankind,  it  is  that  sublime  patriotism,  which, 
looking  beyond  its  own  times,  and  its  own  fleeting  pur- 
suits, aims  to  secure  the  permanent  happiness  of  pos- 
terity by  laying  the  broad  foundations  of  government 
upon  immovable  principles  of  justice.  Our  affections, 
indeed,  may  naturally  be  presumed  to  outlive  the  brief 
limits  of  our  own  lives,  and  to  repose  with  deep  sensi- 
bility upon  our  own  immediate  descendants.  But  there 
is  a  noble  disinterestedness  in  that  forecast,  which  dis- 
regards present  objects  for  the  sake  of  all  mankind, 
and  erect  structures  to  protect,  support,  and  bless  the 
most  distant  generations.  He,  who  founds  a  hospital, 
a  college,  or  even  a  more  private  and  limited  charity,  is 
justly  esteemed  a  benefactor  of  the  human  race.  How 
much  more  do  they  deserve  our  reverence  and  praise, 
whose  Hves  are  devoted  to  the  formation  of  institutions, 
which,  when  they  and  their  children  are  mingled  in  the 
common  dust,  may  continue  to  cherish  the  principles 
and  the  practice  of  liberty  in  perpetual  freshness  and 
vigour. 

^  255.  The  grand  design  of  the  state  governments  is, 
doubtless,  to  accomplish  this  important  purpose ;  and 
there  can  be  no  doubt,  that  they  are,  when  well  admin- 
istered, well  adapted  to  the  end.    But  the  question  is 


190  CONSTITUTION  OF  THE  U.    STATES.     [bOOK  III. 

not  SO  much,  whether  they  conduce  to  the  preservation 
of  the  blessings  of  liberty,  as  whether  they  of  themselves 
furnish  a  complete  and  satisfactory  security.  If  the 
remarks,  which  have  been  already  offered,  are  founded 
in  sound  reasoning  and  human  experience,  they  estab- 
lish the  position,  that  the  state  governments,  per  se,  are 
incompetent  and  inadequate  to  furnish  such  guards  and 
guaranties,  as  a  free  people  have  a  right  to  require  for 
the  maintenance  of  their  vital  interests,  and  especially 
of  their  liberty.  The  inquiry  then  naturally  presents 
itself,  whether  the  estabhshment  of  a  national  govern- 
ment will  afford  more  effectual  and  adequate  securities. 

^  256.  The  fact  has  been  already  adverted  to,  that 
when  the  constitution  was  before  the  people  for  adop- 
tion, it  was  generally  represented  by  its  opponents,  that 
its  obvious  tendency  to  a  consolidation  of  the  powers 
of  government  would  subvert  the  state  sovereignties, 
and  thus  prove  dangerous  to  the  liberties  of  the  people. 
This  indeed  was  a  topic  dwelt  on  with  peculiar  empha- 
sis ;  and  it  produced  so  general  an  alarm  and  terror, 
that  it  came  very  nigh  accompHshing  the  rejection  of 
the  constitution.  And  yet  the  reasoning,  by  which  it 
was  supported,  was  so  vague  and  unsatisfactory ;  and 
the  reasoning,  on  the  other  side,  was  so  cogent  and 
just,  that  it  seems  difficult  to  conceive,  how,  at  that 
time,  or  at  any  later  time,  (for  it  has  often  been  resort- 
ed to  for  the  same  purpose,)  the  suggestion  could  have 
had  any  substantial  influence  upon  the  public  opinion. 

§  257.  Let  us  glance  at  a  few  considerations,  (some 
of  which  have  been  already  hinted  at,)  which  are  cal- 
culated to  suppress  all  alarm  upon  this  subject.  In  the 
first  place,  the  government  of  the  United  States  is  one 
of  limited  powers,  leaving  all  residuary  general  powers 
in  the  state  governments,  or  in  the  people  thereof.     The 


CH.  VI.]  THE    PREAMBLE.  191 

jurisdiction  of  the  general  government  is  confined  to  a 
few  enumerated  objects,  which  concern  the  common 
welfare  of  all  the  states.  The  state  governments  have  a 
full  superintendence  and  control  over  the  immense  mass 
of  local  interests  of  their  respective  states,  which  con- 
nect themselves  with  the  feelings,  the  affections,  the 
municipal  institutions,  and  the  internal  arrangements  of 
the  whole  population.  They  possess,  too,  the  imme- 
diate administration  of  justice  in  all  cases,  civil  and 
criminal,  which  concern  the  property,  personal  rights, 
and  peaceful  pursuits  of  their  own  citizens.  They 
must  of  course  possess  a  large  share  of  influence  ;  and 
being  independent  of  each  other,  will  have  many  op- 
portunities to  interpose  checks,  as  well  as  to  combine  a 
common  resistance,  to  any  undue  exercise  of  power  by 
the  general  government,  independent  of  direct  force. 

^  258.  In  the  next  place,  the  state  governments  are, 
by  the  very  theory  of  the  constitution,  essential  con- 
stituent parts  of  the  general  government.  They  can 
exist  without  the  latter,  but  the  latter  cannot  exist  with- 
out them.  Without  the  intervention  of  the  state  legis- 
latures, the  president  of  the  United  States  cannot  be 
elected  at  all ;  and  the  senate  is  exclusively  and  ab- 
solutely under  the  choice  of  the  state  legislatures. 
The  representatives  are  chosen  by  the  people  of  the 
states.  So  that  the  executive  and  legislative  branches 
of  the  national  government  depend  upon,  and  ema- 
nate from  the  states.  Every  where  the  state  sovereign- 
ties are  represented ;  and  the  national  sovereignty,  as 
such,  has  no  representation.  How  is  it  possible,  under 
such  circumstances,  that  the  national  government  can 
be  dangei'ous  to  the  liberties  of  the  people,  unless  the 
states,  and  the  people  of  the  states,  conspire  together 
for  their  overthrow  ?     If  there  should  be  such  a  con- 


192   CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

spiracy,fis  not  this  more  justly  to  be  deemed  an  act  of 
the  states  through  their  own  agents,  and  by  their  own 
choice,  rather  than  a  corrupt  usurpation  by  the  general 
government  7 

^  259.  Besides ;  the  perpetual  organization  of  the 
state  governments,  in  all  their  departments,  executive, 
legislative,  and  judicial ;  their  natural  tendency  to  co- 
operation in  cases  of  threatened  danger  to  their  com- 
mon liberties ;  the  perpetually  recurring  right  of  the 
elective  franchise,  at  short  intervals,  must  present  the 
most  formidable  barriers  against  any  deliberate  usurpa- 
tion, which  does  not  arise  from  the  hearty  co-operation 
of  the  people  of  the  states.  And  when  such  a  general 
co-operation  for  usurpation  shall  exist,  it  is  obvious, 
that  neither  the  general,  nor  the  state  governments,  can 
interpose  any  permanent  protection.  Each  must  sub- 
mit to  that  public  will,  which  created,  and  may  destroy 
them. 

^  260.  Another  not  unimportant  consideration  is, 
that  the  powers  of  the  general  government  will  be,  and 
indeed  must  be,  principally  employed  upon  external 
objects,  such  as  war,  peace,  negotiations  with  foreign 
powers,  and  foreign  commerce.  In  its  internal  opera- 
tions it  can  touch  but  few  objects,  except  to  introduce 
regulations  beneficial  to  the  commerce,  intercourse,  and 
other  relations,  between  the  states,  and  to  lay  taxes  for 
the  common  good.  The  powers  of  the  states,  on  the 
other  hand,  extend  to  all  objects,  which,  in  the  ordinary  i 
course  of  affairs,  concern  the  Hves,  and  liberties,  and 
property  of  the  people,  and  the  internal  order,  improve- 
ment, and  prosperity  of  the  state.  The  operations  of 
the  general  government  will  be  most  extensive  and  im- 
portant in  times  of  war  and  danger ;  those  of  the  state 
governments  in  times  of  peace  and  security.     Inde- 


CH.  VI.]  THE  PREAMBLE.  193 

pendent  of  all  other  considerations,  the  fact,  that  the 
states  possess  a  concurrent  power  of  taxation,  and  an 
exclusive  power  to  regulate  the  descents,  devise,  and 
distribution  of  estates,  (a  power  the  most  formidable  to 
despotism,  and  the  most  indispensable  in  its  right  ex- 
ercise to  republicanism,)  will  for  ever  give  them  an . 
influence,  which  will  be  as  commanding,  as,  with  refe- 
rence to  the  safety  of  the  Union,  they  could  deliberate- 
ly desire. 

^261.  Hitherto  our  experience  has  demonstrated 
the  entire  safety  of  the  states,  under  the  benign  opera- 
tions of  the  constitution.  Each  of  the  states  has  grown 
in  power,  in  vigour  of  operation,  in  commanding  influ- 
ence, in  wealth,  revenue,  population,  commerce,  agri- 
culture, and  general  efficiency.  No  man  will  venture 
to  affirm,  that  their  power,  relative  to  that  of  the  Union, 
has  been  diminished,  although  our  populadon  has,  in  the 
intermediate  period,  passed  from  three  to  more  than 
twelve  millions.  No  man  will  pretend  to  say,  that  the 
affection  for  the  state  governments  has  been  sensibly 
diminished  by  the  operations  of  the  general  government. 
If  the  latter  has  become  more  deeply  an  object  of  re- 
gard and  reverence,  of  attachment  and  pride,  it  is,  be- 
cause it  is  felt  to  be  the  parental  guardian  of  our  public 
and  private  rights,  and  the  natural  ally  of  all  the  state 
governments,  in  the  administration  of  justice,  and  the 
promotion  of  the  general  prosperity.  Ii  is  beloved,  not 
for  its  power,  but  for  its  beneficence ;  not  because  it 
commands,  but  because  it  protects ;  not  because  it 
controls,  but  because  it  sustains  the  common  interests, 
and  the  common  liberties,  and  the  common  rights  of 
the  people. 

^  262.  If,  upon  a  closer  survey  of  all  the  powers  giv- 
en by  the  constitution,  and  all  the  guards  upon  their 

Abr.  25 


194       CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

exercise,  we  shall  perceive  still  stronger  inducements 
to  fortify  this  conclusion,  and  to  increase  our  confidence 
in  the  constitution,  may  we  not  justly  hope,  that  every 
honest  American  will  concur  in  the  dying  expression  of 
Father  Paul,  "  Esto  perpetua,"  may  it  he  perpetual 


CH  VII.]  DISTRIBUTION  OF  POWERS.  195 


CHAPTER  VII. 

DISTRIBUTION  OF  POWERS. 

§  263.  In  surveying  the  general  structure  of  the 
constitution  of  the  United  States,  we  are  naturally  led 
to  an  examination  of  the  fundamental  principles,  on 
which  it  is  organized,  for  the  purpose  of  carrying  into 
effect  the  objects  disclosed  in  the  preamble.  Every 
government  must  include  within  its  scope,  at  least  if  it 
is  to  possess  suitable  stability  and  energy,  the  exercise 
of  the  three  great  powers,  upon  which  all  governments 
are  supposed  to  rest,  viz.  the  executive,  the  legislative, 
and  the  judicial  powers.  The  manner  and  extent,  in 
which  these  powers  are  to  be  exercised,  and  the  func- 
tionaries, in  whom  they  are  to  be  vested,  constitute  the 
great  distinctions,  which  are  known  in  the  forms  of 
government.  In  absolute  governments  the  whole 
executive,  legislative,  and  judicial  powers  are,  at  least 
in  their  final  result,  exclusively  confided  to  a  single  in- 
dividual ;  and  such  a  form  of  government  is  denominated 
a  despotism,  as  the  whole  sovereignty  of  the  state  is 
vested  in  him.  If  the  same  powers  are  exclusively  con- 
fided to  a  few  persons,  constituting  a  permanent  sove- 
reign council,  the  government  may  be  appropriately 
denominated  an  absolute  or  despotic  Aristocracy.  If 
they  are  exercised  by  the  people  at  large  in  their  origi- 
nal sovereign  assemblies,  the  government  is  a  pure  and 
absolute  Democracy.  But  it  is  more  common  to  find 
these  powers  divided,  and  separately  exercised  by  in- 
4ependent  functionaries,  the  executive  power  by  one 
department,  the  legislative  by  another,  and  the  judicial 


196  CONSTITUTION  OF  THE  U.  STATES.     [bOOK  III. 

by  a  third;  and  in  these  cases  the  government  is  prop- 
erly deemed  a  mixed  one  ;  a  mixed  monarchy,  if  the 
executive  power  is  hereditary  in  a  single  person ;  a 
mixed  aristocracy,  if  it  is  hereditary  in  several  chieftains 
or  famihes ;  and  a  mixed  democracy  or  republic,  if  it  is 
delegated  by  election,  and  is  not  hereditary.  In  mixed 
monarchies  and  aristocracies  some  of  the  functionaries 
of  the  legislative  and  judicial  powers  are,  or  at  least 
may  be  hereditary.  But  in  a  representative  republic 
all  power  emanates  from  the  people,  and  is  exercised 
by  their  choice,  and  never  extends  beyond  the  lives  of 
the  individuals,  to  whom  it  is  'entrusted.  It  may  be 
entrusted  for  any  shorter  period ;  and  then  it  returns  to 
them  again,  to  be  again  delegated  by  a  new  choice. 

^  264.  In  the  convention,  which  framed  the  consti- 
tution of  the  United  States,  the  first  resolution  adopted 
by  that  body  was,  that  "  a  national,  government  ought  to 
be  established,  consisting  of  a  supreme  legislative,  judi- 
ciary, and  executive."  And  from  this  fundamental 
proposition  sprung  the  subsequent  organization  of  the 
whole  government  of  the  United  States. 

^  265.  In  the  estabhshment  of  free  governments, 
the  division  of  the  three  great  powers  of  govern- 
ment, the  executive,  the  legislative,  and  the  judicial, 
among  different  functionaries,  has  been  a  favorite  poli- 
cy with  patriots  and  statesmen.  It  has  by  many  been 
deemed  a  maxim  of  vital  importance,  that  these  pow- 
ers should  for  ever  be  kept  separate  and  distinct. 
And  accordingly  we  find  it  laid  down  vAih  emphatic 
care  in  the  bill  of  rights  of  several  of  the  state  constitu- 
tions. 

^  266.  The  general  reasoning,  by  which  the  maxim 
is  supported,  independently  of  the  just  weight  of  the 
authority  in  its   support,   seems  entirely  satisfactory. 


CH  VII.]  DISTRIBUTION  OF  POWERS.  197 

What  is  of  far  more  value  than  any  mere  reasoning, 
experience  has  demonstrated  it  to  be  founded  in  a  just 
view  of  the  nature  of  government,  and  the  safety  and 
liberty  of  the  people.  And  it  is  no  small  commendation 
of  the  constitution  of  the  United  States,  that  instead  of 
adopting  a  new  theory,  it  has  placed  this  practical  truth, 
as  the  basis  of  its  organization.  It  has  placed  the  leg- 
islative, executive,  and  judicial  powers  in  different 
hands.  It  has,  as  we  shall  presently  see,  made  their 
term  of  office  and  their  organization  different ;  and,  for 
objects  of  permanent  and  paramount  importance,  has 
given  to  the  judicial  department  a  tenure  of  office  dur- 
ing good  behaviour ;  while  it  has  limited  each  of  the 
others  to  a  term  of  years. 

^  267.  But  when  we  speak  of  a  separation  of  the 
three  great  departments  of  government,  and  maintain, 
that  that  separation  is  indispensable  to  public  liberty, 
we  are  to  understand  this  maxim  in  a  limited  sense. 
It  is  not  meant  to  affirm,  that  they  must  be  kept  wholly 
and  entirely  separate  and  distinct,  and  have  no  com- 
mon link  of  connexion  or  dependence,  the  one  upon 
the  other,  in  the  slightest  degree.  The  true  meaning 
is,  that  the  whole  power  of  one  of  these  departments 
should  not  be  exercised  by  the  same  hands,  which  pos- 
sess the  whole  power  of  either  of  the  other  departments; 
and  that, such  exercise  of  the  whole  would  subvert  the 
principles  of  a  free  constitution. 

§  268.  How  far  the  constitution  of  the  United 
States,  in  the  actual  separation  of  these  departments, 
and  the  occasional  mixtures  of  some  of  the  powers 
of  each,  has  accomplished  the  objects  of  the  great 
maxim,  which  we  have  been  considering,  will  ap- 
pear more  fully,  when  a  survey  is  taken  of  the  par- 
ticular powers  confided   to    each  department.      But 


198  CONSTITUTION  OF   THE  U.  STATES.    [BOOK  III. 

the  true  and  only  test  must,  after  all,  be  experi- 
ence, which  corrects  at  once  the  errors  of  theory, 
and  fortifies  and  illustrates  the  eternal  judgments  of 
nature. 


GH.  VIII,]  THE  LEGISLATURE.  199 

CHAPTER  VIII. 

THE  LEGISLATURE. 

§  269.  The  first  article  of  the  constitution  contains 
the  structure,  organization,  and  powers,  of  the  legisla- 
ture of  the  Union.  Each  section  of  that  article,  and 
indeed,  of  every  other  article,  will  require  a  careful 
analysis,  and  distinct  examination.  It  is  proposed, 
therefore,  to  bring  each  separately  under  review,  in  the 
present  commentaries,  and  to  unfold  the  reasons,  on 
which  each  is  founded,  the  objections,  which  have  been 
urged  against  it,  and  the  interpretation,  so  far  as  it  can 
be  satisfactorily  ascertained,  of  the  terms,  in  which  each 
is  expressed. 

^  270.  The  first  section  of  the  first  article  is  in  the 
following  words  :  "  All  legislative  powers  herein 
"  granted  shall  be  vested  in  a  congress  of  the  United 
"  States,  which  shall  consist  of  a  senate  and  house  of 
"  representatives." 

^271.  This  section  involves,  as  a  fundamental  rule, 
the  exercise  of  the  legislative  power  by  two  distinct 
and  independent  branches.  Under  the  confederation, 
the  whole  legislative  power  of  the  Union  was  vested  in 
a  single  branch.  Limited  as  was  that  power,  the  con- 
centration of  it  in  a  single  body  was  deemed  a  promi- 
nent defect  of  the  confederation.  But  if  a  single  assem- 
bly could  properly  be  deemed  a  fit  receptacle  of  the 
slender  and  fettered  authorities,  confided  to  the  federal 
government  by  that  instrument,  it  could  scarcely  be 
consistent  with  the  principles  of  a  good  government  to 
entrust  it  with  the  more  enlarged  and  vigorous  powers 
delegated  in  the  constitution. 


200  CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 

^  272.  The  utility  of  a  subdivision  of  the  legislative 
power  into  different  branches,  having  a  negative  upon 
each  other,  is,  perhaps,  at  the  present  time  admitted 
by  most  persons  of  sound  reflection.  But  it  has  not 
always  found  general  approbation  ;  and  it  is,  even  now, 
sometimes  disputed  by  men  of  speculative  ingenui- 
ty, and  recluse  habits.  It  has  been  justly  observed, 
that  there  is  scarcely  in  the  whole  science  of  politics  a 
more  important  maxim,  and  one,  which  bears  with 
greater  influence  upon  the  practical  operations  of  gov- 
ernment. 

^  273.  It  may  not,  therefore,  be  uninstructive  to  re- 
view some  of  the  principal  arguments,  by  which  this 
division  is  vindicated.  The  first  and  most  important 
ground  is,  that  it  forms  a  great  check  upon  undue,  hasty, 
and  oppressive  legislation.  Public  bodies,  like  private 
persons,  are  occasionally  under  the  dominion  of  strong 
passions  and  excitements ;  and  are  impatient,  irritable, 
and  impetuous.  The  habit  of  acting  together  produces  a 
strong  tendency  to  what,  for  want  of  a  better  word,  may 
be  called  the  corporation  spirit,  or  what  is  so  happily 
expressed  in  a  foreign  phrase,  Vesprit  du  corps.  Cer- 
tain popular  leaders  often  acquire  an  extraordinary  as- 
cendency over  the  body,  by  their  talents,  their  elo- 
quence, their  intrigues,  or  their  cunning.  Measures  are 
often  introduced  in  a  hurry,  and  debated  with  little  care, 
and  examined  with  less  caution.  The  very  restless- 
ness of  many  minds  produces  an  utter  impossibility  of 
debating  with  much  deliberation,  when  a  measure  has  a 
plausible  aspect,  and  enjoys  a  momentary  favour.  Nor 
is  it  infrequent,  especially  in  cases  of  this  sort,  to  over- 
look well-founded  objections  to  a  measure,  not  only 
because  the  advocates  of  it  have  Httle  desire  to  bring 
them  in  review,  but  because  the  opponents  are  often 


CH.  VIII.]  THE  LEGISLATURE*  201 

seduced  into  a  credulous  silence.  A  legislative  body  is 
not  ordinarily  apt  to  mistrust  its  own  powers,  and  far 
less  the  temperate  exercise  of  those  powers.  As  it 
prescribes  its  own  rules  for  its  own  deliberations,  it 
easily  relaxes  them,  whenever  any  pressure  is  made  for 
an  immediate  decision.  If  it  feels  no  check  but  its  own 
will,  it  rarely  has  the  firmness  to  insist  upon  holding  a 
question  long  enough  under  its  own  view,  to  see  and 
mark  it  in  all  its  bearings  and  relations  on  society. 

^  274.  But  it  is  not  merely  inconsiderate  and  rash 
legislation,  which  is  to  be  guarded  against,  in  the  ordi- 
nary course  of  things.  There  is  a  strong  propensity  in 
public  bodies  to  accumulate  power  in  their  own  hands, 
to  widen  the  extent  of  their  own  influence,  and  to  ab- 
sorb within  their  own  circle  the  means,  and  the  motives 
of  patronage.  If  the  whole  legislative  power  is  vested 
in  a  single  body,  there  can  be,  practically,  no  restraint 
upon  the  fullest  exercise  of  that  power ;  and  of  any 
usurpation,  which  it  may  seek  to  excuse  or  justify, 
either  from  necessity,  or  a  superior  regard  to  the  public 
good.  It  has  been  often  said,  that  necessity  is  the  plea 
of  tyrants ;  but  it  is  equally  true,  that  it  is  the  plea  of  all 
public  bodies  invested  with  power,  where  no  check  ex- 
ists upon  its  exercise.  Mr.  Hume  has  remarked  with 
great  sagacity,  that  men  are  generally  more  honest  in 
their  private,  than  in  their  public  capacity  ;  and  will  go 
greater  lengths  to  serve  a  party,  than  when  their  own 
private  interest  is  alone  concerned.  Honour  is  a  great 
check  upon  mankind.  But  where  a  considerable  body 
of  men  act  together,  this  check  is  in  a  great  measure 
removed,  since  a  man  is  sure  to  be  approved  of  by  his 
own  party,  for  what  promotes  the  common  interest ; 
and  he  soon  learns  to  despise  the  clamours  of  adversa- 
ries.    This  is  by  no  means  an  opinion  peculiar  to  Mr. 

Abr.  26 


202  CONSTITUTION  OF  THE  U.  STATES.    [bOOK  llh 

Hume.  It  will  be  found  lying  at  the  foundation  of  the 
political  reasonings  of  many  of  the  greatest  men  in  all 
ages,  as  the  result  of  a  close  survey  of  the  passions,  and 
infirmities,  of  the  history,  and  experience  of  mankind. 
With  a  view,  therefore,  to  preserve  the  rights  and  lib- 
erties of  the  people  against  unjust  encroachments,  and 
to  secure  the  equal  benefits  of  a  free  constitution,  it  is 
of  vital  importance  to  interpose  some  check  against  the 
undue  exercise  of  the  legislative  power,  which  in  every 
government  is  the  predominating,  and  almost  irresisti- 
ble power. 

§  275.  The  value,  then,  of  a  distribution  of  the  legis- 
lative power,  between  two  branches,  each  possessing  a 
negative  upon  the  other,  may  be  summed  up  under  the 
following  heads.  First :  It  operates  directly  as  a  se- 
curity against  hasty,  rash,  and  dangerous  legislation ; 
and  allows  errors  and  mistakes  to  be  corrected,  before 
they  have  produced  any  public  mischiefs.  It  interpos- 
es delay  between  the  introduction,  and  final  adoption 
of  a  measure;  and  thus  furnishes  time  for  reflection; 
and  for  the  successive  deliberations  of  different  bodies, 
actuated  by  different  motives,  and  organized  upon  dif- 
ferent principles. 

§  276.  In  the  next  place,  it  operates  indirectly  as  a 
preventive  to  attempts  to  carry  private,  personal,  or 
party  objects,  not  connected  with  the  common  good. 
The  very  circumstance,  that  there  exists  another  body 
clothed  with  equal  power,  and  jealous  of  its  own  rights, 
and  independent  of  the  influence  of  the  leaders,  who 
favour  a  particular  measure,  by  whom  it  must  be  scan- 
ned, and  to  whom  it  must  be  recommended  upon  its  own 
merits,  will  have  a  silent  tendency  to  discourage  the 
efforts  to  carry  it  by  surprise,  or  by  intrigue,  or  by 
corrupt  party  combinations.     It  is  far  less  easy  to  de- 


CH.    VIII.]  THE    LEGISLATURE.  203 

ceive,  or  corrupt,  or  persuade  two  bodies  into  a  course, 
subversive  of  the  general  good,  than  it  is  one  ;  especial- 
ly if  the  elements,  of  which  they  are  composed,  are  es- 
sentially different. 

§  277.  In  the  next  place  as  legislation  necessarily 
acts,  or  may  act,  upon  the  whole  community,  and  in- 
volves interests  of  vast  difficulty  and  complexity,  and 
requires  nice  adjustments,  and  comprehensive  enact- 
ments, it  is  of  the  greatest  consequence  to  secure  an 
independent  review  of  it  by  different  minds,  acting 
under  different,  and  sometimes  opposite  opinions  and 
feelings ;  so,  that  it  may  be  as  perfect,  as  human  wis- 
dom can  devise.  An  appellate  jurisdiction,  therefore, 
that  acts,  and  is  acted  upon  alternatively,  in  the  exer-^- 
cise  of  an  independent  revisory  authority,  must  have 
the  means,  and  can  scarcely  fail  to  possess  the  will,  to 
give  it  a  full  and  satisfactory  review.  Every  one  knows, 
notwithstanding  all  the  guards  interposed  to  secure  due 
deliberation,  how  imperfect  all  human  legislation  is; 
how  much  it  embraces  of  doubtful  principle,  and  of  still 
more  doubtful  utility ;  how  various,  and  yet  how  defec- 
tive, are  its  provisions  to  protect  rights,  and  to  redress 
wrongs.  Whatever,  therefore,  naturally  and  necessa- 
rily aw^akens  doubt,  solicits  caution,  attracts  inquiry,  or 
stimulates  vigilance  and  industry,  is  of  value  to  aid  us 
against  precipitancy  in  framing,  or  altering  laws,  as  well 
as  against  yielding  to  the  suggestions  of  indolence,  the 
selfish  projects  of  ambition,  or  the  cunning  devices  of 
corrupt  and  hollow  demagogues.  For  this  purpose,  no 
better  expedient  has,  as  yet,  been  found,  than  the  crea- 
tion of  an  independent  branch  of  censors  to  revise  the 
legislative  enactments  of  others,  and  to  alter,  amend,  or 
reject  them  at  its  pleasure,  while,  in  return,  its  own  are 
to  pass  through  a  like  ordeal. 


204    CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 

§  278.  In  the  next  place,  there  can  scarcely  be  any 
Other  adequate  security  against  encroachments  upon 
the  constitutional  rights  and  liberties  of  the  people. 
Algernon  Sidney  has  said  with  great  force,  that  the  legis- 
lative power  is  always  arbitrary,  and  not  to  be  trusted 
in  the  hands  of  any,  who  are  not  bound  to  obey  the 
laws  they  make.  But  it  is  not  less  true,  that  it  has  a 
constant  tendency  to  overleap  its  proper  boundaries, 
from  passion,  from  ambition,  from  inadvertence,  from 
the  prevalence  of  faction,  or  from  the  overwhelming  in- 
fluence of  private  interests.  Under  such  circumstan- 
ces, the  only  effectual  barrier  against  oppression,  acci- 
dental or  intentional,  is  to  separate  its  operations,  to 
balance  interest  against  interest,  ambition  against  ambi- 
tion, the  combinations  and  spirit  of  dominion  of  one 
body  against  the  like  combinations  and  spirit  of  another. 
And  it  is  obvious,  that  the  more  various  the  elements, 
which  enter  into  the  actual  composition  of  each  body, 
the  greater  the  security  will  be, 

^  279.  Such  is  an  outline  of  the  general  reasoning, 
by  which  the  system  of  a  separation  of  the  legislative 
power  into  two  branches  has  been  maintained.  Expe- 
rience has  shown,  that  if  in  all  cases  it  has  not  been 
found  a  complete  check  to  inconsiderate  or  unconstitu- 
tional legislation;  yet,  it  has,  upon  many  occasions, 
been  found  sufficient  for  the  purpose.  There  is  not 
probably  at  this  moment  a  single  state  in  the  Union, 
which  would  consent  to  unite  the  two  branches  into  one 
assembly ;  though  there  have  not  been  wanting  at  all 
times  minds  of  a  high  order,  which  have  been  led  by 
enthusiasm,  or  a  love  of  simplicity,  or  a  devotion  to 
theory,  to  vindicate  such  a  union  with  arguments,  strik- 
ing and  plausible,  if  not  convincing. 


CH.  VIII.]  THE  LEGISLATURE.  205 

§  280.  Having  considered  the  general  reasoning,  by 
which  the  division  of  the  legislative  power  has  been 
justified,  it  may  be  proper,  in  conclusion,  to  give  a  sum- 
mary of  those  grounds,  which  were  deemed  most  im- 
portant, and  which  had  most  influence  in  settling  the 
actual  structure  of  the  constitution  of  the  United  States. 
The  question  of  course  had  reference  altogether  to  the 
establishment  of  the  senate ;  for  no  one  doubted  the 
propriety  of  estabhshing  a  house  of  representatives,  as 
a  depositary  of  the  legislative  power,  however  much 
any  might  differ,  as  to  the  nature  of  its  composition. 

§  281.  In  order  to  justify  the  existence  of  a  senate 
with  co-ordinate  powers,  it  was  said,  first,  that  it  is  a 
misfortune  incident  to  republican  governments,  though 
in  a  less  degree,  than  to  other  governments,  that  those, 
who  administer  it,  may  forget  their  obligations  to  their 
constituents,  and  prove  unfaithful  to  their  important 
trust.  In  this  point  of  view,  a  senate,  as  a  second 
branch  of  the  legislative  assembly,  distinct  from,  and 
dividing  the  power  with  a  first,  must  be  in  all  cases  a 
salutary  check  on  the  government.  It  doubles  the 
security  to  the  people  by  requiring  the  concurrence  of 
two  distinct  bodies,  in  schemes  of  usurpation  or  per- 
fidy ;  whereas  the  ambition  or  corruption  of  one  would 
otherwise  be  sufficient.  This  precaution,  it  was  added, 
is  founded  on  such  clear  principles,  and  so  well  un- 
derstood in  the  United  States,  that  it  is  superfluous 
\o  enlarge  on  it.  As  the  improbability  of  sinister  com- 
binations would  be  in  proportion  to  the  dissimilarity  in 
the  genius  of  the  two  bodies,  it  must  be  politic  to  dis- 
tinguish them  from  each  other  by  every  circumstance, 
which  would  consist  with  a  due  harmony  in  all  proper 
measures,  and  with  the  genuine  principles  of  republican 
government. 


206    CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

§  282.  Secondly.  The  necessity  of  a  senate  is 
not  less  indicated  by  the  propensity  of  all  single  and 
numerous  assemblies  to  yield  to  the  impulse  of  sud- 
den and  violent  passions,  and  to  be  seduced  by  fac- 
tious leaders  into  intemperate  and  pernicious  resolu- 
tions. Examples  of  this  sort  might  be  cited  without 
number,  and  from  proceedings  in  the  United  States,  as 
well  as  from  the  history  of  other  nations.  A  body, 
which  is  to  correct  this  infirmity,  ought  to  be  free  from 
it,  and  consequently  ought  to  be  less  numerous,  and  to 
possess  a  due  degree  of  firmness,  and  a  proper  tenure 
of  olfice. 

^  283.  Thirdly.  Another  defect  to  be  supplied  by 
a  senate  lies  in  the  want  of  a  due  acquaintance  with  the 
objects  and  principles  of  legislation.  A  good  govern- 
ment imphes  two  things  ;  first,  fidelity  to  the  objects  of 
the  government ;  secondly,  a  knowledge  of  the  means, 
by  which  those  objects  can  be  best  attained.  It  was  sug- 
gested, that  in  the  American  governments  too  little  at- 
tention had  been  paid  to  the  last ;  and  that  the  estab- 
lishment of  a  senate  upon  a  proper  basis  would  greatly 
increase  the  chances  of  fidelity,  and  of  wise  and  safe 
legislation.  What  (it  was  asked)  are  all  the  repealing, 
explaining,  and  amending  laws,  which  fill  and  disgrace 
our  voluminous  codes,  but  so  many  monuments  of  de- 
ficient wisdom ;  so  many  impeachments  exhibited 
by  each  succeeding,  against  each  preceding  session; 
so  many  admonitions  to  the  people  of  the  value  of  thos^ 
aids,  which  may  be  expected  from  a  well-constituted 
senate  7 

^  284.  Fourthly.  Such  a  body  would  prevent  too 
great  a  mutability  in  the  public  councils,  arising  from  a 
rapid  succession  of  new  members ;  forfrom  a  change  of 
men  there  must  proceed  a  change  of  opinions,  and  from 


CH.  VIII.]  THE    LEGISLATURE.  207 

a  change  of  opinions,  a  change  of  measures.  Such  in- 
stability in  legislation  has  a  tendency  to  diminish  respect 
and  confidence  abroad,  as  well  as  safety  and  prosperity 
at  home.  It  has  a  tendency  to  damp  the  ardour  of  in- 
dustry and  enterprise ;  to  diminish  the  security  of  prop- 
erty ;  and  to  impair  the  reverence  and  attachment, 
which  are  indispensable  to  the  permanence  of  every 
political  institution. 

§  285.  Fifthly.  Another  ground,  illustrating  the  util- 
ity of  a  senate,  was  suggested  to  be  the  keeping  alive  of 
a  due  sense  of  national  character.  In  respect  to  foreign 
nations,  this  is  of  vital  importance ;  for  in  our  inter- 
course with  them,  if  a  scrupulous  and  uniform  adher- 
ence to  just  principles  is  not  observed,  it  must  sub- 
ject us  to  many  embarrassments  and  collisions.  It  is 
difficult  to  impress  upon  a  single  body,  which  is  nume- 
rous and  changeable,  a  deep  sense  of  the  value  of  na- 
tional character.  A  small  portion  of  the  praise,  or 
blame  of  any  particular  measure  can  fall  to  the  lot  of 
any  particular  person ;  and  the  period  of  office  is  so 
short,  that  little  responsibility  is  felt,  and  little  pride  is 
indulged,  as  to  the  course  of  the  government. 

§  286.  Sixthly.  It  was  urged,  that,  paradoxical  as 
it  might  seem,  the  want  in  some  important  cases  of  a 
due  responsibility  in  the  government  arises  from  that 
very  frequency  of  elections,  which  in  other  cases  pro- 
duces such  responsibiUty.  In  order  to  be  reasonable, 
responsibility  must  be  limited  to  objects  within  the 
power  of  the  responsible  party ;  and  in  order  to  be 
effectual,  it  must  relate  to  operations  of  that  power,  of 
which  a  ready  and  proper  judgment  can  be  formed  by 
the  constituents.  Some  measures  have  singly  an  im- 
mediate and  sensible  operation ;  others  again  depend 


208        CONSTITUTION  OF  THE  U.  STATES.       [bOOK  HI. 

on  a  succession  of  well  conducted  schemes,  and  have 
a  gradual,  and  perhaps  unobserved  operation.  If,  there- 
fore, there  be  but  one  assembly,  chosen  for  a  short  peri- 
od, it  will  be  difficult  to  keep  up  the  train  of  proper 
measures,  or  to  preserve  the  proper  connexion  between 
the  past  and  the  future.  And  the  more  numerous  the 
body,  and  the  more  changeable  its  component  parts, 
the  more  difficult  it  will  be  to  preserve  the  personal 
responsibiUty,  as  w^ell  as  the  uniform  action,  of  the  suc- 
cessive members  to  the  great  objects  of  the  public 
welfare. 

^  287.  Lastly.  A  senate  duly  constituted  would  not 
only  operate,  as  a  salutary  check  upon  the  representa- 
tives, but  occasionally  upon  the  people  themselves, 
against  their  own  temporary  delusions  and  errors. 
The  cool,  deliberate  sense  of  the  community  ought  in 
all  governments,  and  actually  will  in  all  free  govern- 
ments, ultimately  prevail  over  the  views  of  their  rulers. 
But  there  are  particular  moments  in  public  affairs,  w  hen 
the  people,  stimulated  by  some  irregular  passion,  or 
some  illicit  advantage,  or  misled  by  the  artful  misrepre- 
sentations of  interested  men,  may  call  for  measures, 
which  they  themselves  will  afterwards  be  the  most 
ready  to  lament  and  condemn.  In  these  critical  mo- 
ments, how  salutary  will  be  the  interference  of  a  body 
of  respectable  citizens,  chosen  without  reference  to  the 
exciting  cause,  to  check  the  misguided  career  of  public 
opinion,  and  to  suspend  the  blow,  until  reason,  justice, 
and  truth  can  regain  their  authority  over  the  public 
mind.  It  was  thought  to  add  great  weight  to  all  these 
considerations,  that  history  has  informed  us  of  no  long- 
lived  republic,  which  had  not  a  senate.  Sparta,  Rome, 
Carthage  were,  in  fact,  the  only  states,  to  whom  that 
character  can  be  applied. 


CH.  VIII.]  THE    LEGISLATURE.  209 

§  288.  It  will  be  observed,  that  some  parts  of  the 
foregoing  reasoning  apply  to  the  fundamental  impor- 
tance of  an  actual  division  of  the  legislative  power ;  and 
other  parts  to  the  true  principles,  upon  which  that  di- 
vision should  be  subsequently  organized,  in  order  to 
give  full  effect  to  the  constitutional  check.  Some  parts 
go  to  show  the  value  of  a  senate ;  and  others,  what 
should  be  its  structure,  in  order  to  ensure  wisdom,  ex- 
perience, fidelity,  and  dignity  in  its  members.  All  of 
it,  however,  instructs  us,  that,  in  order  to  give  it  fair 
play  and  influence,  as  a  co-ordinate  branch  of  govern- 
ment, it  ought  to  be  less  numerous,  more  select,  and 
more  durable,  than  the  other  branch ;  and  be  chosen  in 
a  manner,  which  should  combine,  and  represent  differ- 
ent interests  with  a  varied  force.  How  far  these  ob- 
jects are  attained  by  the  constitution  will  be  better 
seen,  when  the  details  belonging  to  each  department 
are  successively  examined. 


Abr.  27 


210  CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 

CHAPTER  IX. 

HOUSE    OF    REPRESENTATIVES. 

^  289.  The  second  section  of  the  first  article  con- 
tains the  structure  and  organization  of  the  house  of 
representatives.     The  first  clause  is  as  follows  : 

"  The  house  of  representatives  shall  be  composed  of 
"  members  chosen  every  second  year  by  the  people  of 
"  the  several  states ;  and  the  electors  in  each  state  shall 
"have  the  qualifications  requisite  for  electors  of  the 
"  most  numerous  branch  of  the  state  legislature." 

^  290.  As  soon  as  it  was  settled,  that  the  legislative 
power  should  be  divided  into  two  separate  and  distinct 
branches,  a  very  important  consideration  arose  in  regard 
to  the  organization  of  those  branches  respectively.  It 
is  obvious,  that  the  organization  of  each  is  susceptible  of 
very  great  diversities  and  modifications,  in  respect  to 
the  principles  of  representation  ;  the  qualification  of  the 
electors,  and  the  elected ;  the  term  of  service  of  the 
members;  the  ratio  of  representation;  and  the  number, 
of  which  the  body  should  be  composed. 

§  29 1 .  First ;  the  principle  of  representation.  The 
American  people  had  long  been  in  the  enjoyment 
of  the  privilege  of  electing,  at  least,  one  branch  of  the 
legislature ;  and,  in  some  of  the  colonies,  of  electing  all 
the  branches  composing  the  legislature.  A  house  of 
representatives,  under  various  denominations,  such  as  a 
house  of  delegates,  a  house  of  commons,  or,  simply,  a 
house  of  representatives,  emanating  directly  from,  and 
responsible  to  the  people,  and  possessing  a  distinct  and 
independent  legislative  authority,  was  familiar  to  all  the 
colonies,  and  was  held  by  them  in  the  highest  rever- 


CH.  IX.]  HOUSE  OF  REPRESENTATIVES.  211 

ence  and  respect.  They  justly  thought,  that  as  the 
government  in  general  should  always  have  a  common 
interest  with  the  people,  and  be  administered  for  their 
good ;  so  it  was  essential  to  their  rights  and  liberties, 
that  the  most  numerous  branch  should  have  an  immedi- 
ate dependence  upon,  and  sympathy  with  the  people. 
There  was  no  novelty  in  this  view.  It  was  not  the 
mere  result  of  a  state  of  colonial  dependence,  in  which 
their  jealousy  was  awake  to  all  the  natural  encroach- 
ments of  power  in  a  foreign  realm.  They  had  drawn 
their  opinions  and  principles  from  the  practice  of  the 
parent  country.  They  knew  the  inestimable  value  of 
the  house  of  commons,  as  a  component  branch  of  the 
British  parliament;  and  they  believed,  that  it  had  at 
all  times  furnished  the  best  security  against  the  oppres- 
sions of  the  crown,  and  the  aristocracy.  While  the 
power  of  taxation,  of  revenue,  and  of  supplies,  remained 
in  the  hands  of  a  popular  branch,  it  was  difficult  for 
usurpation  to  exist  for  any  length  of  time  without  check; 
and  prerogative  must  yield  to  that  necessity,  which 
controlled  at  once  the  sword  and  the  purse.  No  rea- 
soning, therefore,  was  necessary  to  satisfy  the  American 
people  of  the  advantages  of  a  house  of  representatives, 
which  should  emanate  direcdy  from  themselves ;  which 
should  guard  their  interests,  support  their  rights,  ex- 
press their  opinions,  make  known  their  wants,  redress 
their  grievances,  and  introduce  a  pervading  popular  in- 
fluence throughout  all  the  operations  of  the  government. 
Experience,  as  well  as  theory,  had  settled  it  in  their 
minds,  as  a  fundamental  principle  of  a  free  government, 
and  especially  of  a  republican  government,  that  no  laws 
ought  to  be  passed  without  the  co-operation  and  con- 
sent of  the  representatives  of  the  people ;  and  that 
these  representatives  should  be  chosen  by  themselves, 


212     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

without  the  intervention  of  any  other  functionaries  to 
intercept,  or  vary  their  responsibility. 

§  292.  We  accordingly  find,  that  in  the  section  under 
consideration,  the  house  of  representatives  is  required 
to  be  composed  of  representatives  chosen  by  the  people 
of  the  several  states.  The  choice,  too,  is  to  be  made 
immediately  by  them ;  so  that  the  power  is  direct ;  the 
influence  direct ;  and  the  responsibility  direct.  If  any 
intermediate  agency  had  been  adopted,  such  as  a  choice 
through  an  electoral  college,  or  by  ofl[icial  personages, 
or  by  select  and  specially  qualified  functionaries  pro 
hac  vice,  it  is  obvious,  that  the  dependence  of  the  repre- 
sentatives upon  the  people,  and  the  responsibility  to 
them,  would  have  been  far  less  felt,  and  far  more  ob- 
structed. Influence  would  have  naturally  grown  up 
with  patronage ;  and  here,  as  in  many  other  cases,  the 
legal  maxim  would  have  applied,  causa  proximay  non 
remota,  spectatur.  The  select  body  would  have  been 
at  once  the  patrons  and  the  guides  of  the  represen- 
tative ;  and  the  people  themselves  would  have  become 
the  instrument  of  subverting  their  own  rights  and  power. 

§  293.  But  this  fundamental  principle  of  an  immedi- 
ate choice  by  the  people,  however  important,  would 
alone  be  insufficient  for  the  public  security,  if  the  right 
of  choice  had  not  had  many  auxiliary  guards  and  accom- 
paniments. It  was  indispensable,  secondly,  to  provide 
for  the  qualifications  of  the  electors.  It  is  obvious,  that 
even  when  the  principle  is  estabhshed,  that  the  popular 
branch  of  the  legislature  shall  emanate  directly  from  the 
people,  there  still  remains  a  very  serious  question ;  by 
whom  and  in  what  manner  the  choice  shall  be  made. 
It  is  a  question  vital  to  the  system,  and  in  a  practical 
sense  decisive,  as  to  the  durability  and  efficiency  of  the 
powers  of  government.     Here,  there  is  much  room  for 


CH.  IX.]         HOUSE  OF  REPRESENTATIVES.  213 

doubt,  and  ingenious  speculation,  and  theoretical  inqui- 
ry ;  upon  which  different  minds  may  arrive,  and  indeed 
have  arrived,  at  very  different  results.  To  whom  ought 
the  right  of  suffrage,  in  a  free  government,  to  be  con- 
fided ?  Or,  in  other  words,  who  ought  to  be  permitted 
to  vote  in  the  choice  of  the  representatives  of  the  peo- 
ple? Ought  the  right  of  suffrage  to  be  absolutely 
universal  ?  Ought  it  to  be  qualified  and  restrained  ? 
Ought  it  to  belong  to  many,  or  few  ?  If  there  ought  to 
be  restraints  and  qualifications,  what  are  the  true  bound- 
aries and  hmits  of  such  restraints  and  quahfications  ? 

^  294.  These  questions  are  sufficiently  perplexing 
and  disquieting  in  theory ;  and  in  the  practice  of  differ- 
ent states,  and  even  of  free  states,  ancient  as  well  as 
modern,  they  have  assumed  almost  infinite  varieties  of 
form  and  illustration.  Perhaps  they  do  not  admit  of 
any  general,  much  less  of  any  universal  answer,  so  as 
to  furnish  an  unexceptionable  and  certain  rule  for  all 
ages  and  all  nations.  The  manners,  habits,  institutions, 
characters,  and  pursuits  of  different  nations ;  the  local 
position  of  the  territory,  in  regard  to  other  nations;  the 
actual  organizations  and  classes  of  society ;  the  influ- 
ences of  peculiar  religious,  civil,  or  political  institutions ; 
the  dangers,  as  well  as  the  difficulties,  of  the  times ;  the 
degrees  of  knowledge  or  ignorance  pervading  the  mass 
of  society ;  the  national  temperament,  and  even  the  ch- 
mate  and  products  of  the  soil ;  the  cold  and  thoughtful 
gravity  of  the  north;  and  the  warm  and  mercurial 
excitabiUty  of  tropical  or  southern  regions ;  all  these 
may,  and  probably  will,  introduce  modifications  of  prin- 
ciple, as  well  as  of  opinion,  in  regard  to  the  right  of 
suffrage,  which  it  is  not  easy  either  to  justify,  or  to  over- 
throw. 


214     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

§  295.  Without  laying  any  stress  upon  theoretical 
reasoning  on  this  subject,  it  may  be  proper  to  state, 
that  every  civilized  society  has  uniformly  fixed,  modi- 
fied, and  regulated  the  right  of  suffrage  for  itself, 
according  to  its  own  free  will  and  pleasure.  Every 
constitution  of  government  in  these  United  States  has 
assumed,  as  a  fundamental  principle,  the  right  of  the 
people  of  the  state  to  alter,  abohsh,  and  modify  the  form 
of  its  own  government,  according  to  the  sovereign  pleas- 
ure of  the  people.  In  fact,  the  people  of  each  state 
have  gone  much  farther,  and  settled  a  far  more  critical 
question,  by  deciding,  who  shall  be  the  voters,  entided 
to  approve  and  reject  the  constitution  framed  by  a  dele- 
gated body  under  their  direcdon.  In  the  adoption  of 
no  state  constitution  has  the  assent  been  asked  of  any, 
but  the  qualified  voters ;  and  women,  and  minors,  and 
other  persons,  not  recognised  as  voters  by  exisdng 
laws,  have  been  studiously  excluded.  And  yet  the 
constitution  has  been  deemed  entirely  obligatory  upon 
them,  as  well  as  upon  the  minority,  who  voted  against 
it.  From  this  it  will  be  seen,  how  little,  even  in  the 
most  free  of  repubhcan  governments,  any  abstract  right 
of  suffrage,  or  any  original  and  indefeasible  privilege, 
has  been  recognised  in  practice.  If  this  consideration 
does  not  satisfy  our  minds,  it  at  least  will  prepare  us 
to  presume,  that  there  may  be  an  almost  infinite  diver- 
sity in  the  estabhshed  right  of  voting,  without  any  state 
being  able  to  assert,  that  its  own  mode  is  exclusively 
founded  in  natural  justice,  or  is  most  conformable  to 
sound  pohcy,  or  is  best  adapted  to  the  public  security. 
It  will  teach  us,  that  the  question  is  necessarily  com- 
plex and  intricate  in  its  own  nature,  and  is  scarcely 
susceptible  of  any  simple  solution,  which  shall  rigidly 


CH.  IX.]         HOUSE  OF  REPRESENTATIVES.  215 

apply  to  the  circumstances  and  conditions,  the  inter- 
ests and  the  feelings,  the  institutions  and  the  manners 
of  all  nations.  What  may  best  promote  the  public  weal, 
and  secure  the  public  liberty,  and  advance  the  public 
prosperity  in  one  age  or  nation,  may  totally  fail  of  similar 
results  under  local,  physical,  or  moral  predicaments 
essentially  different. 

^  296.  It  would  carry  us  too  far  from  the  immediate 
objects  of  these  Commentaries  to  take  a  general  survey 
of  the  various  modifications,  under  which  the  right  of 
suffrage,  either  in  relation  to  laws,  or  magistracy,  or 
even  judicial  controversies,  has  appeared  in  different 
nations  in  ancient  and  modern  times.     The  examples 
of  Greece  and  Rome  in  ancient  times,  and  of  England 
in  modern  times,  will  be  found  most  instructive.     In 
England,  the  qualifications  of  voters,  as  also  the  modes 
of  representation,  are  various,  and  framed   upon   no 
common  principle.     The  counties  are  represented  by 
knights,  elected  by  the  proprietors  of  lands,  who  are 
freeholders ;   the  boroughs  and  cities  are  represented 
by   citizens   and  burgesses,  or  others  chosen  by  the 
citizens  or  burgesses,  according  to  the  qualifications  pre- 
scribed by  custom,  or  by  the  respective  charters  and 
by-laws   of    each   borough,    or   city.      In  these,  the 
right  of  voting  is  almost  infinitely  varied  and  modified. 
In   the   American  colonies,  under  their  charters  and 
laws,  no  uniform  rules  in  regard  to  the  right  of  suffrage 
existed.     In  some  of  the  colonies  the  course  of  the 
parent  country  was  closely  followed,  so  that  freehold- 
ers alone  were  voters  ;  in  others  a  very  near  approach 
was  made  to  universal  suffrage  among  the  males  of 
competent  age ;  and  in  others,  again,  a  middle  princi- 
ple was  adopted,  which  made  taxation  and  voting  de- 
pendent upon  each  other,  or  annexed  to  it  the  qualifi- 


216    CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

cation  of  holding  some  personal  estate,  or  the  privilege 
of  being  a  freeman,  or  the  eldest  son  of  a  freeman  of 
the  town  or  corporation.     When  the  revolution  brought 
about  the  separation  of  the  colonies,  and  they  formed 
themselves  into  independent   states,   a  very  striking 
diversity  was  observable  in  the  original  constitutions 
adopted  by  them ;  and  a  like  diversity  has  pervaded 
all  the  constitutions  of  the  new  states,  which  have  since 
grown  up,  and  all  the  revised  constitutions  of  the  old 
states,  which  have  received  the  final  ratification  of  the 
people.     In  some  of  the  states  the  right  of  suffrage 
depends  upon  a  certain  length  of  residence,  and  pay- 
ment of  taxes ;  in  others,  upon  mere  citizenship  and 
residence;  in  others,  upon  the  possession  of  a  freehold, 
or  some  estate  of  a  particular  value,  or  upon  the  pay- 
ment of  taxes,  or  performance  of  some  public  duty, 
such  as   service   in  the  militia,  or  on   the  highways. 
In  no  two  of  these  state  constitutions  will  it  be  found, 
that  the  qualifications  of  the  voters  are  setded  upon  the 
same    uniform    basis.      So   that  we  have   the  most 
abundant  proofs,  that  among  a  free  and  enlightened 
people,  convened  for  the  purpose  of  establishing  their 
own  forms  of  government,  and  the  rights  of  their  own 
voters,  the  question,  as  to  the  due  regulation  of  the 
qualifications,  has  been  deemed  a  matter  of  mere  state 
policy,  and  varied  to  meet  the  wants,  to  suit  the  preju- 
dices, and  to  foster  the  interests  of  the  majority.     An 
absolute,  indefeasible  right  to   elect,   or  be  elected, 
seems  never  to  have  been  asserted  on  one  side,  or 
denied  on  the  other ;  but  the  subject  has  been  freely 
canvassed,  as  one  of  mere  civil  polity,  to  be  arranged 
upon  such  a  basis,  as  the  majority  might  deem  expe- 
dient with  reference  to  the  moral,  physical,  and  intel- 
lectual condition  of  the  particular  state. 


CH,  IX.]  HOUSE    OF    REPRESENTATIVES.  217 

^  297.  It  was  under  this  known  diversity  of  consti- 
tutional provisions  in  regard  to  state  elections,  that  the 
convention,  which  framed  the  constitution  of  the  Union, 
was  assembled.  The  definition  of  the  right  of  suffrage 
is  very  justly  regarded,  as  a  fundamental  article  of  a 
republican  government.  It  was  incumbent  on  the 
convention,  therefore,  to  define  and  establish  this  right 
in  the  constitution.  To  have  left  it  open  for  the  occa- 
sional regulation  of  congress  would  have  been  improper, 
for  the  reason  just  mentioned.  To  have  submitted  it 
to  the  legislative  discretion  of  the  states  would  have 
been  improper  for  the  same  reason,  and  for  the  addi- 
tional reason,  that  it  would  have  rendered  too  depen- 
dent on  the  state  governments  that  branch  of  the  fed- 
eral government,  which  ought  to  be  dependent  on  the 
people  alone.  Two  modes  of  providing  for  the  right 
of  suffrage  in  the  choice  of  representatives  were  pre- 
sented to  the  consideration  of  that  body.  One  was  to 
devise  some  plan,  which  should  operate  uniformly  in  all 
the  states,  on  a  common  principle ;  the  other  was  to 
conform  to  the  existing  diversities  in  the  states,  thus 
creating  a  mixed  mode  of  representation.  In  favour  of 
the  former  course,  it  might  be  urged,  that  all  the  states 
ought,  upon  the  floor  of  the  house  of  representatives, 
to  be  represented  equally;  that  this  could  be  accom- 
plished only  by  the  adoption  of  a  uniform  qualification 
of  the  voters,  who  would  thus  express  the  same  public 
opinion  of  the  same  body  of  citizens  throughout  the 
Union ;  that,  if  freeholders  alone  in  one  state  chose  the 
representatives,  and  in  another  all  male  citizens  of 
competent  age,  and  in  another  all  freemen  of  particu- 
lar towns  or  corporations,  and  in  another  all  taxed 
inhabitants,  it  would  be  obvious,  that  different  inter- 
ests and  classes  would  obtain  exclusive  representations 

Abr.  2S 


218     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

in  different  states ;  and  thus  the  great  object  of  the 
constitution,  the  promotion  of  the  general  welfare  and 
common  defence,  might  be  unduly  checked  and  ob- 
structed ;  that  a  uniform  principle  would  at  least  have 
this  recommendation,  that  it  could  create  no  well- 
founded  jealousies  among  the  different  states,  and 
would  be  most  likely  to  satisfy  the  body  of  the  people 
by  its  perfect  fairness,  its  permanent  equality  of  opera- 
tion, and  its  entire  independence  of  all  local  legislation, 
whether  in  the  shape  of  state  laws,  or  of  amendments 
to  state  constitutions. 

^  298.  On  the  other  hand,  it  might  be  urged  in  fa- 
vour of  the  latter  course,  that  the  reducing  of  the  differ- 
ent quahfications,  already  existing  in  the  different  states, 
to  one  uniform  rule,  would  have  been  a  very  difficult 
task,  even  to  the  convention  itself,  and  would  be  dis- 
satisfactory to  the  people  of  different  states.  It  would 
not  be  very  easy  for  the  convention  to  frame  any  rule, 
which  would  satisfy  the  scruples,  the  prejudices,  or  the 
judgments  of  a  majority  of  its  own  members.  It  would 
not  be  easy  to  induce  Virginia  to  give  up  the  exclusive 
right  of  freeholders  to  vote ;  or  Rhode-Island,  or  Con- 
necticut, the  exclusive  right  of  freemen  to  vote;  or 
Massachusetts,  the  right  of  persons  possessing  a  given 
value  of  personal  property  to  vote ;  or  other  states,  the 
right  of  persons  paying  taxes,  or  having  a  fixed  residence, 
to  vote.  The  subject  itself  was  not  susceptible  of  any 
very  exact  limitations  upon  any  general  reasoning.  The 
circumstances  of  different  states  might  create  great  di- 
versities in  the  practical  operation  of  any  uniform  sys^ 
tem.  And  the  natural  attachments,  which  long  habit  an( 
usage  had  sanctioned,  in  regard  to  the  exercise  of  th( 
right,  would  enlist  all  the  feelings,  and  interests,  an( 
opinions  of  every  state  against  any  substantial  change 


CH.  IX.]         HOUSE  OF  REPRESENTATIVES.  219 

in  its  own  institutions.  A  great  embarrassment  would 
be  thus  thrown  in  the  way  of  the  adoption  of  the  consti- 
tution itself,  which  perhaps  would  thus  be  put  at  haz- 
ard, upon  the  mere  ground  of  theoretical  propriety. 

^  299.  In  the  judgment  of  the  convention,  this  latter 
reasoning  seems  to  have  obtained  a  decisive  influence, 
and  to  have  established  the  final  result ;  and  it  was  ac- 
cordingly declared,  in  the  clause  under  consideration, 
that  "  the  electors  in  each  state  shall  have  the  qualifica- 
tions requisite  for  electors  of  the  most  numerous  branch 
of  the  state  legislature."  Upon  this  clause  (which  was 
finally  adopted  by  a  unanimous  vote)  the  Federalist  has 
remarked,  "  the  provision  made  by  the  convention  ap- 
pears to  be  the  best,  that  lay  within  their  option.  It  must 
be  satisfactory  to  every  state,  because  it  is  conformable 
to  the  standard  already  established  by  the  state  itself.  It 
will  be  safe  to  the  United  States,  because,  being  fixed 
by  the  state  constitutions,  it  is  not  alterable  by  the 
state  governments ;  and  it  cannot  be  feared,  that  the 
people  of  the  states  will  alter  this  part  of  their  constitu- 
tions in  such  a  manner,  as  to  abridge  the  rights  secur- 
ed to  them  by  the  federal  constitution." 

^  300.  In  the  third  place,  the  term  of  service  of 
representatives.  In  order  to  ensure  permanent  safety  to 
the  liberties  of  the  people,  other  guards  are  indispensa- 
ble, besides  those,  which  are  derived  from  the  exercise  of 
the  right  of  suffrage  and  representation.  If,  when  the  le- 
gislature is  once  chosen,  it  is  perpetual,  or  may  last  during 
the  life  of  the  representatives;  and  in  case  of  death,  or  re- 
signation only,  the  vacancy  is  to  be  supplied  by  the  elec- 
tion of  new  representatives ;  it  is  easy  to  perceive,  that 
in  such  cases  there  will  be  but  a  very  slight  check  up- 
on their  acts,  on  the  part  of  the  people.  In  such  cases, 
if  the  legislative  body  should  be  once  corrupted,  the  evil 


220  CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 

would  be  past  all  remedy,  at  least  without  some  violent 
revolution,  or  extraordinary  calamity.     But,  when  dif- 
ferent legislative  bodies  are  to  succeed  each  other  at 
short  intervals,  if  the  people  disapprove  of  the  present, 
they  may  rectify  its  faults,  by  the  silent  exercise  of  their 
power  in  the  succeeding  election.     Besides ;  a  legisla- 
tive assembly,  which  is  sure  to  be  separated  again,  and 
its  members  soon  return  to  private  Hfe,  will  feel  its  own 
interests,  as  well  as  duties,  bound  up  with  those  of  the 
community  at  large.     It  may,  therefore,  be  safely  laid 
down  as  a  fundamental  axiom  of  republican  govern- 
ments, that  there  must  be  a  dependence  on,  and  re- 
sponsibility to,  the  people,  on  the  part  of  the  represen- 
tative, which  shall  constantly  exert  an  influence  upon 
his  acts  and  opinions,  and  produce  a  sympathy  between 
him  and  his  constituents.     If,  when  he  is  once  elected, 
he  holds  his  place  for  hfe,  or  during  good  behaviour,  or 
for  a  long  period  of  years,  it  is  obvious,  that  there  will 
be  httle  effective  control  exercised  upon  him ;  and  he 
will  soon  learn  to  disregard  the  wishes,  the  interests, 
and  even  the  rights  of  his  constituents,  whenever  they 
interfere  with   his   own  sellish   pursuits  and  objects. 
When  appointed,  he  may  not,  indeed,  consider  himself, 
as  exclusively  their  representative,  bound  by  their  opin- 
ions,   and   devoted  to   their  pecuUar  local  interests, 
although  they  may  be  wholly  inconsistent  with  the  good 
of  the  Union.     He  ought  rather  to  deem  himself  a  repre- 
sentative of  the  nation,  and  bound  to  provide  for  the 
general  welfare,  and  to  consult  for  the  general  safety. 
But  still  in  a  just  sense,  he  ought  to  feel  his  responsi- 
bility to  them,  and  to  act  for  them  in  common  with  the 
rest  of  the  people;  and  to  deem  himself,  in  an  emphatic 
manner,  their  defender,  and  their  friend. 


CH.  IX.]  HOUSE  OF  REPRESENTATIVES.  221 

^301.  Frequent  elections  are  unquestionably  the 
soundest,  if  not  the  sole  policy,  by  which  this  depend- 
ence and  sympathy  and  responsibility  can  be  effectual- 
ly secured.  But  the  question,  what  degree  of  frequen- 
cy is  best  calculated  to  accomphsh  that  object,  is  not 
susceptible  of  any  precise  and  universal  answer,  and 
must  essentially  depend  upon  very  different  considera- 
tions in  different  nations,  and  vary  with  their  size,  their 
age,  their  condition,  their  institutions,  and  their  local 
peculiarities. 

§  302.  Without  pretending  to  go  into  a  complete 
survey  of  the  subject  in  all  its  bearings,  the  frequency 
of  elections  may  be  materially  affected,  as  matter  of 
policy,  by  the  extent  of  the  population  and  territory  of 
a  country,  the  concentration  or  sparseness  of  the  popu- 
lation, the  nature  of  the  pursuits,  and  employments,  and 
engagements  of  the  people;  and  by  the  local  and  pohti- 
cal  situation  of  the  nation  in  regard  to  contiguous  na- 
tions. If  the  government  be  of  small  extent,  or  be  con- 
centrated in  a  single  city,  it  will  be  far  more  easy  for 
the  citizens  to  choose  their  rulers  frequently,  and  to 
change  them  without  mischief,  than  it  would  be,  if  the 
territory  were  large,  the  population  sparse,  and  the  means 
of  intercourse  few,  and  liable  to  interruption.  If  all  the 
inhabitants,  who  are  to  vote,  reside  in  towns  and  villages, 
there  will  be  httle  inconvenience  in  assembling  them  to- 
gether at  a  short  notice  to  make  a  choice.  It  will  be  far 
otherwise,  if  the  inhabitants  are  scattered  over  a  large 
territory,  and  are  engaged  in  agricultural  pursuits,  like  the 
planters  and  farmers  of  the  southern  and  western  states, 
who  must  meet  at  a  distance  from  their  respective  homes, 
and  at  some  common  place  of  assembling.  In  cases  of 
this  sort,  the  sacrifice  of  time  necessary  to  accomplish 


222     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

the  object,  the  expenses  of  the  journey,  the  imperfect 
means  of  communication,  the  slow  progress  of  inter- 
changes of  opinion,  would  naturally  diminish  the  exer- 
cise of  the  right  of  suffrage.  There  would  be  great 
danger,  under  such  circumstances,  that  there  would 
grow  up  a  general  indifference  or  inattention  to  elec- 
tions, if  they  were  frequent,  since  they  would  create 
little  interest,  and  would  involve  heavy  charges  and 
burthens.  The  nature  of  the  pursuits  and  employments 
of  the  people  must  also  have  great  influence  in  settling 
the  question.  If  the  mass  of  the  citizens  are  engaged 
in  employments,  which  take  them  away  for  a  long  peri- 
od from  home,  such  as  employment  in  the  whale  and 
cod  fisheries,  in  the  fur- trade,  in  foreign  and  distant 
commerce,  in  periodical  caravans,  or  in  other  pursuits, 
which  require  constant  attention,  or  long  continued  la- 
bours at  particular  seasons;  it  is  obvious,  that  frequent 
elections,  which  should  interfere  with  their  primary  in- 
terests and  objects,  would  be  at  once  inconvenient,  op- 
pressive, and  unequal.  They  would  enable  the  few  to 
obtain  a  complete  triumph  and  ascendency  in  the  af- 
fairs of  the  state  over  the  many.  Besides ;  the  frequen- 
cy of  elections  must  be  subject  to  other  considerations, 
affecting  the  general  comfort  and  convenience,  as  well 
of  rulers,  as  of  electors.  In  the  bleak  regions  of  Lapland, 
and  the  farther  north,  and  in  the  sultry  and  protracted 
heats  of  the  south,  a  due  regard  must  be  had  to  the 
health  of  the  inhabitants,  and  to  the  ordinary  means  of 
travelling.  If  the  territory  be  large,  the  representatives 
must  come  from  great  distances,  and  are  liable  to  be 
retarded  by  all  the  varieties  of  climate,  and  geological 
features  of  the  country ;  by  drifts  of  impassable  snows ; 
by  sudden  inundations ;  by  chains  of  mountains ;  by 
extensive  prairies ;  by  numerous  streams ;  by  sandy 
deserts. 


CH.  IX.]  HOUSE  OF  REPRESENTATIVES.  223 

§  303.  The  task  of  legislation,  too,  is  exceedingly 
different  in  a  small  state,  from  what  it  is  in  a  large  one ; 
in  a  state  engaged  in  a  single  pursuit,  or  living  in  pas- 
toral simplicity,  from  what  it  is  in  a  state  engaged  in 
the  infinitely  varied  employments  of  agriculture,  manu- 
facture, and  commerce,  where  enterprise  and  capital 
rapidly  circulate  and  new  legislation  is  constantly  re- 
quired by  the  new  fortunes  of  society.  A  single  week 
might  suffice  for  the  ordinary  legislation  of  a  state  of 
the  territorial  extent  of  Rhode-Island;  while  several 
months  would  scarcely  suffice  for  that  of  New -York, 
In  Great-Britain  a  half  year  is  consumed  in  legislation 
for  its  diversified  interests  and  occupations;  while  a 
week  would  accomplish  all,  that  belongs  to  that  of  Lap- 
land or  of  Greenland,  of  the  narrow  republic  of  Geneva, 
or  of  the  subordinate  principahties  of  Germany.  Athens 
might  legislate,  without  obstructing  the  daily  course  of 
common  business,  for  her  own  meagre  territory ;  but 
when  Rome  had  become  the  mistress  of  the  world,  the 
year  seemed  too  short  for  all  the  exigencies  of  her 
sovereignty.  When  she  deliberated  for  a  world,  she 
felt,  that  legislation,  to  be  wise  or  safe,  must  be  slow 
and  cautious ;  that  knowledge,  as  well  as  power,  was 
indispensable  for  the  just  government  of  her  prov- 
inces. 

^  304.  Again ;  the  local  position  of  a  nation  in  re- 
gard to  other  nations  may  require  very  different  courses 
of  legislation,  and  very  different  intervals  of  elections, 
from  what  w^ould  be  dictated  by  a  sense  of  its  own  in- 
terest and  convenience  under  other  circumstances.  If 
it  is  surrounded  by  powerful  and  warlike  neighbours,  its 
own  government  must  be  invested  with  proportionately 
prompt  means  to  act,  and  to  legislate,  in  order  to  repel 
aggressions,  and   secure  its   own    rights.      Frequent 


224  CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 

changes  in  the  public  councils  might  not  only  leave  it 
exposed  to  the  hazard  of  having  no  efficient  body  in 
existence  to  act  upon  any  sudden  emergency,  but  also, 
by  the  fluctuations  of  opinion,  necessarily  growing  out 
of  these  changes,  introduce  imbecility,  irresolution,  and 
the  want  of  due  information  into  those  councils.  Men, 
to  act  with  vigour  and  effect,  must  have  time  to  mature 
measures,  and  judgment  and  experience,  as  to  the  best 
method  of  applying  them.  They  must  not  be  hurried 
on  to  their  conclusions  by  the  passions,  or  the  fears  of 
the  multitude.  They  must  deliberate,  as  well  as  re- 
solve. If  the  power  drops  from  their  hands  before 
the}*  have  an  opportunity  to  carry  any  system  into  full 
effect,  or  even  to  put  it  on  its  trials  it  is  impossible,  that 
foreign  nations  should  not  be  able,  by  intrigues,  by 
false  alarms,  and  by  corrupt  influences,  to  defeat  the 
wisest  measures  of  the  best  patriots. 

^  305.  One  other  consideration  of  a  general  nature 
deserves  attention.  It  is,  that  while,  on  the  one  hand, 
constantly  recurring  elections  afibrd  a  great  security  to 
j)ublic  liberty,  they  are  not,  on  the  other  hand,  without 
some  dangers  and  inconveniences  of  a  formidable  na- 
ture. The  very  frequency  of  elections  has  a  tenden- 
cy to  create  agitations  and  dissensions  in  the  public 
mind ;  to  nourish  factions,  and  encourage  restlessness  ; 
to  favour  rash  innovations  in  domestic  legislation  and 
public  policy;  and  to  produce  violent  and  sudden 
changes  in  the  administration  of  public  affairs,  founded 
upon  temporary  excitements  and  prejudices. 

§  306.  It  is  plain,  that  some  of  the  considerations, 
w^hich  have  been  stated,  must  apply  with  very  different 
force  to  the  condition  and  interests  of  different  states ; 
and  they  demonstrate,  if  not  the  absurdity,  at  least  the 
impolicy  of  laying  down  any  general  maxim,  as  to  the 


CH.  IX.]  HOUSE  OF  REPRESENTATIVES.  225 

frequency  of  elections  to  legislative,  or  other  offices. 
There  is  quite  as  much  absurdity  in  laying  down,  as  a 
general  rule,  that  where  annual  elections  end,  tyranny 
begins,  as  there  is  in  saying,  that  the  people  are  free, 
only  while  they  are  choosing  their  representatives,  and 
slaves  during  the  whole  period  of  their  service. 

§  307.  The  reasons,  which  finally  prevailed  in  the 
convention  and  elsewhere  in  favour  of  biennial  elections 
in  preference  to  any  other  period,  may  be  arranged  un- 
der the  following  heads : 

^  308.  In  the  first  place,  an  argument  may  prop- 
erly be  drawn  from  the  extent  of  the  country  to  be 
governed.  The  territorial  extent  of  the  United  States 
will  require  the  representatives  to  travel  from  f  great 
distances ;  and  the  arrangements,  rendered  necessary 
by  that  circumstance,  will  furnish  much  more  serious 
objections  with  men  fit  for  this  service,  if  limited  to  a 
single  year,  than  if  extended  to  two  years.  Annual 
elections  might  be  very  well  adapted  to  the  state  legis- 
latures from  the  facility  of  convening  the  members,  and 
from  the  familiarity  of  the  people  with  all  the  general 
objects  of  local  legislation,  when  they  would  be  highly 
inconvenient  for  the  legislature  of  the  Union.  If,  when 
convened,  the  term  of  congress  were  of  short  duration, 
there  would  scarcely  be  time  properly  to  examine  and 
mature  measures.  A  new  election  might  intervene  be- 
fore there  had  been  an  opportunity  to  interchange 
opinions  and  acquire  the  information  indispensable  for 
wise  and  salutary  action.  Much  of  the  business  of  the 
national  legislature  must  necessarily  be  postponed  be- 
yond a  single  session ;  and  if  new  men  are  to  come 
every  year,  a  great  part  of  the  information  already  ac- 
cumulated will  be  lost,  or  be  unavoidably  open  for  re- 
examination before  any  vote  can  be  properly  had. 

Abr.  29 


226         CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

§  309.  In  the  next  place,  however  well  founded 
the  maxim  may  be,  that  where  no  other  circumstances 
affect  the  case,  the  greater  the  power  is,  the  shorter 
ought  to  be  its  duration  ;  and  conversely,  the  smaller 
the  power,  the  more  safely  its  duration  may  be  pro- 
tracted ;  that  maxim,  if  it  applies  at  all  to  the  govern- 
ment of  the  Union,  is  favorable  to  the  extension  of 
the  period  of  service  beyond  that  of  the  state  legisla- 
tures. The  powers  of  congress  are  few  and  hmited, 
and  of  a  national  character  ;  those  of  the  state  legisla- 
tures are  general,  and  have  few  positive  limitations.  If 
annual  elections  are  safe  for  a  state  ;  biennial  elections 
would  not  be  less  safe  for  the  United  States.  No  just 
objection,  then,  could  arise  from  this  source,  upon  any 
notion,  that  there  would  be  a  more  perfect  security  for 
public  liberty  in  annual  than  in  biennial  elections. 

^310.  But  a  far  more  important  consideration  grows 
out  of  the  nature  and  objects  of  the  powers  of  congress. 
The  aim  of  every  political  constitution  is,  or  ought  to 
be,  first,  to  obtain  for  rulers  men,  who  possess  most 
wisdom  to  discern,  and  most  virtue  to  pursue,  the  com- 
mon good  of  society  ;  and,  in  the  next  place,  to  take 
the  most  effectual  precautions  for  keeping  them  virtu- 
ous, whilst  they  continue  to  hold  their  public  trust. 
Frequent  elections  have,  without  question,  a  tendency 
to  accompHsh  the  latter  object.  But  too  great  a  fre- 
quency will,  almost  invariably,  defeat  the  former  object, 
and,  in  most  cases,  put  at  hazard  the  latter.  As  has 
been  already  intimated,  it  has  a  tendency  to  introduce 
faction,  and  rash  counsels,  and  passionate  appeals  to 
the  prejudices,  rather  than  to  the  sober  judgment  of 
the  people.  And  we  need  not  to  be  reminded,  that 
faction  and  enthusiasm  are  the  instruments,  by  which 
popular  governments  are  destroyed.      It  operates  also, 


CH.  IX.]  HOUSE  OF  REPRESENTATIVES.  227 

as  a  great  discouragement  upon  suitable  candidates 
offering  themselves  for  the  public  service.  They  can 
have  little  opportunity  to  establish  a  solid  reputation,  as 
statesmen  or  patriots,  when  their  schemes  are  liable  to 
be  suddenly  broken  in  upon  by  demagogues,  who  may 
create  injurious  suspicions,  and  even  displace  them  from 
office,  before  their  measures  are  fairly  tried.  And  they 
are  apt  to  grow^  weary  of  continued  appeals  to  vindi- 
cate their  character  and  conduct  at  the  polls,  since  suc- 
cess, however  triumphant,  is  of  such  short  duration,  and 
confidence  is  so  easily  loosened.  These  considerations, 
which  are  always  of  some  weight,  are  especially  appli- 
cable to  services  in  a  national  legislature,  at  a  distance 
from  the  constituents,  and  in  cases,  where  a  great  varie- 
ty of  information,  not  easily  accessible,  is  indispensable 
to  a  right  understanding  of  the  conduct  and  votes  of 
representatives. 

§  311.  But  the  very  nature  and  objects  of  the  na- 
tional government  require  far  more  experience  and 
knowledge,  than  what  may  be  thought  requisite  in  the 
members  of  a  state  legislature.  For  the  latter  a  know- 
ledge of  local  interests  and  opinions  may  ordinarily  suf- 
fice. But  it  is  far  different  with  a  member  of  congress. 
He  is  to  legislate  for  the  interest  and  welfare,  not  of 
one  state  only,  but  of  all  the  states.  It  is  not  enough, 
that  he  comes  to  the  task  with  an  upright  intention  and 
sound  judgment,  but  he  must  have  a  competent  degree 
of  knowledge  of  all  the  subjects,  on  which  he  is  called 
to  legislate ;  and  he  must  have  skill,  as  to  the  best  mode 
of  applying  it.  The  latter  can  scarcely  be  acquired,  but 
by  long  experience  and  training  in  the  nauonal  coun- 
cils. The  period  of  service  ought,  therefore,  to  bear 
some  proportion  to  the  variety  of  knowledge  and  prac- 
tical skill,  which  the  duties  of  the  station  demand. 


228     CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

§  312.  And  this  leads  us  naturally  to  another  remark ; 
and  that  is,  that  a  due  exercise  of  some  of  the  powers 
confided  to  the  house  of  representatives,  even  in  its 
most  narrow  functions,  require,  that  the  members  should 
at  least  be  elected  for  a  period  of  two  years.  The  power 
of  impeachment  could  scarcely  be  exerted  with  effect 
by  any  body,  which  had  not  a  legislative  life  of  such  a 
period.  It  would  scarcely  be  possible,  in  ordinary 
cases,  to  begin  and  end  an  impeachment  at  a  single  an- 
nual session.  And  the  effect  of  a  change  of  members 
during  its  prosecution  would  be  attended  with  no  in- 
considerable embarrassment  and  inconvenience.  If  the 
power  is  ever  to  be  exerted,  so  as  to  bring  great  of- 
fenders to  justice,  there  must  be  a  prolonged  legislative 
term  of  office,  so  as  to  meet  the  exigency.  One  year 
will  not  suffice  to  detect  guilt,  and  to  pursue  it  to  con- 
viction. 

§  313.  Again;  the  house  of  representatives  is  to  be 
the  sole  judge  of  the  elections  of  its  own  members. 
Now,  if  but  one  legislative  session  is  to  be  held  in  a 
year,  and  more  than  one  cannot  ordinarily  be  presumed 
convenient  or  proper,  spurious  elections  cannot  be  in- 
vestigated and  annulled  in  time  to  have  a  due  effect. 
The  sitting  member  must  either  hold  his  seat  during 
the  whole  period  of  the  investigation,  or  he  must  be 
suspended  during  the  same  period.  In  either  case  the 
public  mischief  will  be  very  great.  The  uniform  prac- 
tice has  been  to  allow  the  member,  who  is  returned,  to 
hold  his  seat  and  vote,  until  he  is  displaced  by  the  or- 
der of  the  house,  after  full  investigation.  If,  then,  a 
return  can  be  obtained,  no  matter  by  what  means,  the 
irregular  member  is  sure  of  holding  his  seat,  until  a 
long  period  has  elapsed,  (for  that  is  indispensable  to 
any  thorough  investigation  of  facts  arising  at  great  dis- 


CH.  IX.]  HOUSE  OF  REPRESENTATIVES.  229 

tances ;)  and  thus  a  very  pernicious  encouragement  is 
given  to  the  use  of  unlawful  means  for  obtaining  irregu- 
lar returns,  and  fraudulent  elections. 

§  314.  There  is  one  other  consideration,  not  without 
its  w^eight  in  all  questions  of  this  nature.  Where  elec- 
tions are  very  frequent,  a  few  of  the  members,  as  hap- 
pens in  all  such  assemblies,  will  possess  superior  talents; 
will,  by  frequent  re-elections,  become  members  of  long 
standing ;  will  become  thoroughly  masters  of  the  public 
business  ;  and  thus  will  acquire  a  preponderating  and 
undue  influence,  of  which  they  will  naturally  be  dis- 
posed to  avail  themselves.  The  great  bulk  of  the  house 
will  be  composed  of  new  members,  who  will  necessa- 
rily be  inexperienced,  diffident,  and  undisciplined,  and 
thus  be  subjected  to  the  superior  abiUty  and  informa- 
tion of  the  veteran  legislators.  If  biennial  elections 
would  have  no  more  cogent  effect,  than  to  diminish  the 
amount  of  this  inequahty  ;  to  guard  unsuspecting  con- 
fidence against  the  snares,  which  may  be  set  for  it ;  and 
to  stimulate  a  watchful  and  ambitious  responsibility,  it 
would  have  a  decisive  advantage  over  mere  annual 
elections. 

^315.  Such  were  some  of  the  reasons,  which  pro- 
duced, on  the  part  of  the  framers  of  the  constitution, 
and  ultimately  of  the  people  themselves,  an  approbation 
of  biennial  elections.  Experience  has  demonstrated 
the  sound  policy  and  wisdom  of  the  provision.  But 
looking  back  to  the  period,  when  the  constitution  was 
upon  its  passage,  one  cannot  but  be  struck  with  the 
alarms,  with  which  the  public  mind  was  on  this  subject 
attempted  to  be  disturbed.  It  was  repeatedly  urged 
in  and  out  of  the  state  conventions,  that  biennial  elec- 
tions were  dangerous  to  the  public  liberty ;  and  that 
congress  might  perpetuate  itself,  and  reign  with  abso- 
lute power  over  the  nation. 


230         CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

§  3 1 6.  In  the  next  place,  as  to  the  qualifications  of 
the  elected.  The  constitution  on  this  subject  is  as 
follows  :  "  No  person  shall  be  a  representative,  who 
"  shall  not  have  attained  to  the  age  of  twenty-five  years, 
"  and  been  seven  years  a  citizen  of  the  United  States  ; 
**  and  w^ho  shall  not,  when  elected,  be  an  inhabitant  of 
*'  that  state,  in  which  he  shall  be  chosen." 

§  317.  It  is  obvious,  that  the  inquiry,  as  to  the  due 
quahfications  of  representatives,  like  that,  as  to  the  due 
qualifications  of  electors  in  a  government,  is  susceptible, 
in  its  own  nature,  of  very  different  answers,  according 
to  the  habits,  institutions,  interests,  and  local  peculiari- 
ties of  diff'erent  nations.  It  is  a  point,  upon  which  we 
can  arrive  at  no  universal  rule,  w^hich  will  accomodate 
itself  to  the  welfare  and  wants  of  every  people,  wdth  the 
same  proportionate  advantages.  The  great  objects  are, 
or  ought  to  be,  to  secure,  on  the  part  of  the  represen- 
tatives, fidelity,  sound  judgment, competent  information, 
and  incorruptible  independence.  The  best  modes,  by 
which  these  objects  can  be  attained,  are  matters  of  dis- 
cussion and  reasoning,  and  essentially  dependent  upon 
a  large  and  enlightened  survey  of  the  human  character 
and  passions,  as  developed  in  the  different  stages  of 
civilized  society.  There  is  great  room,  therefore,  for 
diversities  of  judgment  and  opinion  upon  a  subject  so 
comprehensive  and  variable  in  its  elements.  It  would 
be  matter  of  surprise,  if  doctrines  essentially  different, 
nay,  even  opposite  to  each  other,  should  not,  under 
such  circumstances,  be  maintained  by  political  writers, 
equally  eminent  and  able.  Upon  questions  of  civil 
policy,  and  the  fundamental  structure  of  governments, 
there  has  hitherto  been  too  htde  harmony  of  opinion 
among  the  greatest  men  to  encourage  any  hope,  that 
the  future  will  be  less  fruitful  in  dissonances,  than  the 


CH.  IX.]  HOUSE  OF  REPRESENTATIVES.  231 

past.  In  the  practice  of  governments,  a  very  great 
diversity  of  qualifications  has  been  insisted  on,  as  pre- 
requisites of  office  ;  and  this  alone  would  demonstrate, 
that  there  is  not  admitted  to  exist  any  common  stan- 
dard of  superior  excellence,  adapted  to  all  ages,  and  all 
nations. 

^318.  Among  the  American  colonies  antecedent  to 
the  revolution,  a  great  diversity  of  qualifications  existed ; 
and  the  state  constitutions,  subsequently  formed,  by  no 
mean^  lessen  that  diversity.  Some  insist  upon  a  free- 
hold, or  other  property,  of  a  certain  value  ;  others  re- 
quire a  certain  period  of  residence,  and  citizenship  only ; 
others  require  a  freehold  only ;  others  a  payment  of 
taxes,  or  an  equivalent ;  others,  again,  mix  up  all  the 
various  qualifications  of  property,  residence,  citizenship, 
and  taxation,  or  substitute  some  of  these,  as  equivalents 
for  others. 

^319.  The  existing  qualifications  in  the  states  being 
then  so  various,  it  may  be  thought,  that  the  best  course 
v^ould  have  been,  to  adopt  the  rules  of  the  states  re- 
spectively, in  regard  to  the  most  numerous  branch  of 
their  own  legislatures.  And  this  course  might  not  have 
been  open  to  serious  objections.  But,  as  the  qualifica- 
tions of  members  were  thought  to  be  less  carefully  de- 
fined in  the  state  constitutions,  and  more  susceptible  of 
uniformity,  than  those  of  the  electors,  the  subject  was 
thought  proper  for  regulation  by  the  convention.  And 
it  is  observable,  that  the  positive  qualifications  are  few 
and  simple.  They  respect  only  age,  citizenship,  and 
inhabitancy. 

§  320.  First,  in  regard  to  age.  The  representative 
must  have  attained  twenty-five  years.  And  certainly 
to  this  no  reasonable  objection  can  be  made.  If  expe- 
rience, or  wisdom,  or  knowledge,  be  of  value  in  the  na- 


232  CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 

tional  councils,  it  Cctn  scarcely  be  pretended,  that  an 
earlier  age  could  afford  a  certain  guaranty  for  either. 
That  some  qualification  of  age  is  proper,  no  one  will 
dispute.  No  one  will  contend,  that  persons,  who  are 
minors,  ought  to  be  eligible  ;  or,  that  those,  who  have 
not  attained  manhood,  so  as  to  be  entitled  by  the  com- 
mon law  to  dispose  of  their  persons,  or  estates,  at  their 
own  will,  would  be  fit  depositaries  of  the  authority  to 
dispose  of  the  rights,  persons,  and  property  of  others. 
Would  the  mere  attainment  of  twenty-one  years  of  age 
be  a  more  proper  qualification  ?  All  just  reasoning 
would  be  against  it.  The  characters  and  passions  of 
young  men  can  scarcely  be  understood  at  the  moment 
of  their  majority.  They  are  then  new  to  the  rights  of 
self-government ;  warm  in  their  passions ;  ardent  in 
their  expectations  ;  and,  just  escaping  from  pupilage, 
are  strongly  tempted  to  discard  the  lessons  of  caution, 
which  riper  years  inculcate.  What  they  will  become, 
remains  to  be  seen  ;  and  four  years  beyond  that  period 
is  but  a  very  short  space,  in  which  to  try  their  virtues, 
develope  their  talents,  enlarge  their  resources,  and  give 
them  a  practical  insight  into  the  business  of  life  ade- 
quate to  their  own  immediate  wants  and  duties.  Can 
the  interests  of  others  be  safely  confided  to  those,  who 
have  yet  to  learn,  how  to  take  care  of  their  own  7  The 
British  constitution  has,  indeed,  provided  only  for  the 
members  of  the  house  of  commx)ns  not  being  minors ; 
and  illustrious  instances  have  occurred  to  show,  that 
great  statesmen  may  be  formed  even  during  their  mi- 
nority. But  such  instances  are  rare ;  they  are  to  be 
looked  at  as  prodigies,  rather  than  as  examples  ;  as  the 
extraordinary  growth  of  a  peculiar  education  and  char- 
acter, and  a  hot-bed  precocity,  in  a  monarchy,  rather 
than  as  the  sound  and  thrifty  growth  of  the  open  air, 


CH.  IX.]  HOUSE  OF  REPRESENTATIVES.  233 

and  the  bracing  hardihood  of  a  republic.  In  the  con- 
vention this  qualification,  as  to  age,  did  not  pass  without 
a  struggle.  It  was  originally  carried  by  a  vote  of  seven 
states  against  three,  one  being  divided ;  though  it  was 
ultimately  adopted  without  a  division.  In  the  state 
conventions  it  does  not  seem  to  have  formed  any  im- 
portant topic  of  debate. 

^321.  Secondly,  in  regard  to  citizenship.  It  is  re- 
quired, that  the  representative  shall  have  been  a  citizen 
of  the  United  States  seven  years.  Upon  the  propri- 
ety of  excluding  aliens  from  eligibility,  there  could 
scarcely  be  any  room  for  debate ;  for  there  could  be  no 
security  for  a  due  administration  of  any  government  by 
persons,  whose  interests  and  connexions  w^ere  foreign, 
and  who  owed  no  permanent  allegiance  to  it,  and  had 
no  permanent  stake  in  its  measures  or  operations.  For- 
eign influence,  of  the  most  corrupt  and  mischievous 
nature,  could  not  fail  to  make  its  way  into  the  public 
councils,  if  there  were  no  guard  against  the  introduction 
of  alien  representatives.  It  has  accordingly  been  a  fun- 
damental policy  of  most,  if  not  of  all  free  states,  to  ex- 
clude all  foreigners  from  holding  offices  in  the  state. 
The  only  practical  question  would  seem  to  be,  w^hether 
foreigners,  even  after  naturalization,  should  be  eligible 
as  representatives ;  and  if  so,  what  is  a  suitable  period 
of  citizenship  for  the  allowance  of  the  privilege.  In 
England,  all  aliens  born,  unless  naturalized,  were  origi- 
nally excluded  from  a  seat  in  parliament ;  and  now,  by 
positive  legislation,  no  alien,  though  naturahzed,  is  ca- 
pable of  being  a  member  of  either  house  of  parliament. 
A  different  course,  naturally  arising  from  the  circum- 
stances of  the  country,  w^as  adopted  in  the  American 
colonies  antecedent  to   the  revolution,  with  a  view  to 

nvite  emigrations,  and  settlements,  and  thus  to  facilitate 
Abr.  30 


234   CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

the  cultivation  of  their  wild  and  waste  lands.  A  similar 
policy  had  since  pervaded  the  state  governments,  and 
had  been  attended  with  so  many  advantages,  that  it 
would  have  been  impracticable  to  enforce  any  total  ex- 
clusion of  naturalized  citizens  from  office.  In  the  con- 
vention it  was  originally  proposed,  that  three  years' 
citizenship  should  constitute  a  qualification ;  but  that 
was  exchanged  for  seven  years  by  a  vote  of  ten  states 
to  one.  No  objection  seems  even  to  have  been  sug- 
gested against  this  qualification  ;  and  hitherto  it  has 
obtained  a  general  acquiescence  or  approbation.  It 
certainly  subserves  two  important  purposes.  1.  That 
the  constituents  have  a  full  opportunity  of  knowing  the 
character  and  merits  of  their  representative.  2.  That 
the  representative  has  a  like  opportunity  of  learning 
the  character,  and  wants,  and  opinions  of  his  constitu- 
ents. 

§  322.  Thirdly,  in  regard  to  inhabitancy.  It  is  re- 
quired, that  the  representative  shall,  when  elected,  be 
an  inhabitant  of  the  state,  in  which  he  shall  be  chosen. 
The  object  of  this  clause,  doubdess,  w^as  to  secure  an 
attachment  to,  and  a  just  representation  of,  the  inter- 
ests of  the  state  in  the  national  councils.  It  was  sup- 
posed, that  an  inhabitant  would  feel  a  deeper  concern, 
and  possess  a  more  enlighented  view  of  the  various 
interests  of  his  constituents,  than  a  mere  stranger.  And, 
at  all  events,  he  would  generally  possess  more  entirely 
their  sympathy  and  confidence.  It  is  observable,  that 
the  inhabitancy  required  is  within  the  state,  and  not 
within  any  particular  district  of  the  state,  in  w  hich  the 
member  is  chosen.  In  England,  in  former  times,  it 
was  required,  that  all  the  members  of  the  house  of 
commons  should  be  inhabitants  of  the  places,  for  which 
they  were  chosen.     But  this  was  for  a  long  time  wholly 


CH.  IX.]  HOUSE  OF  REPRESENTATIVES.  235 

disregarded  in  practice,  and  was  at  length  repealed  by 
statute  of  14  Geo.  3,  ch.  58.  This  circumstance  is  not 
a  litde  remarkable  in  parliamentary  history  ;  and  it  es- 
tablishes, in  a  very  striking  manner,  how  Httle  mere 
theory  can  be  regarded  in  matters  of  government.  It 
was  found  by  experience,  that  boroughs  and  cities  were 
often  better  represented  by  men  of  eminence,  and 
known  patriotism,  who  were  strangers  to  them,  than 
by  those  chosen  from  their  own  vicinage.  And  to  this 
very  hour  some  of  the  proudest  names  in  English  his- 
tory, as  patriots  and  statesmen,  have  been  the  represen- 
tatives of  obscure,  and,  if  one  may  so  say,  of  ignoble 
boroughs. 

^  323.  It  has  been  justly  observed,  that  under  the 
reasonable  qualifications  established  by  the  constitution, 
the  door  of  this  part  of  the  federal  government  is  open 
to  merit  of  every  description,  whether  native  or  adoptive, 
whether  young  or  old,  and  without  regard  to  poverty 
or  wealth,  or  any  particular  profession  of  religious 
faith. 

§  324.  The  next  clause  of  the  second  section  of  the 
first  article  respects  the  apportionment  of  the  represen- 
tatives among  the  states.  It  is  as  follows:  "Represen- 
"  tatives  and  direct  taxes  shall  be  apportioned  among 
"the  several  states,  which  may  be  included  in  this 
"  Union,  according  to  their  respective  numbers,  which 
"  shall  be  determined  by  adding  to  the  whole  number  of 
"  free  persons,  including  those  bound  to  service  for  a 
"  term  of  years,  and  excluding  Indians  not  taxed,  three- 
"  fifths  of  all  other  persons.  The  actual  enumeration 
"  shall  be  made  within  three  years  after  the  first  meet- 
"  ing  of  the  congress  of  the  United  States,  and  within 
"every  subsequent  term  of  ten  years,  in  such  manner 
"  as  they  shall,  by  law,  direct.     The  number  of  repre- 


236  CONSTITUTION  OF  THE  U.   STATES.     [:B00K  III. 

"  sentatives  shall  not  exceed  one  for  every  thirty  thou- 
"  sand  ;  but  each  state  shall  have  at  least  one  represen- 
"  tative.  And  until  such  enumeration  shall  be  made, 
"  the  state  of  New-Hampshire  shall  be  enlided  to  choose 
"three,  Massachusetts  eight,  Rhode-Island  and  Prov- 
"idence  Plantations  one,  Connecticut  five,  New-York 
"six,  New-Jersey  four,  Pennsylvania  eight,  Delaware 
"one,  Maryland  six,  Virginia  ten.  North- Carolina  five, 
"  South-Carolina  five,  and  Georgia  three." 

§  325.  The  first  apportionment  thus  made,  being  of  a 
temporary  and  fugacious  character,  requires  no  com- 
mentary. The  basis  assumed  was  probably  very  near- 
ly the  same,  w^hich  the  constitution  pointed  out  for  all 
future  apportionments,  or,  at  least,  of  all  the  free  per- 
sons in  the  states. 

It  is  obvious,  that  the  question,  how  the  apportion- 
ment should  be  made,  was  one,  upon  which  a  consid- 
erable diversity  of  judgment  might,  and  probably  would, 
exist.  Three  leading  principles  of  apportionment  would, 
at  once,  present  themselves.  One  was  to  adopt  the  rule 
already  existing  under  the  confederation ;  that  is,  an 
equality  of  representation  and  vote  by  each  state,  thus 
giving  each  state  a  right  to  send  not  less  than  two,  nor 
more  than  seven  representatives,  and  in  the  determina- 
tion of  questions,  each  state  to  have  one  vote.  This 
would  naturally  receive  encouragement  from  all  those, 
who  were  attached  to  the  confederation,  and  preferred 
a  mere  league  of  states,  to  a  government  in  any  degree 
national.  And  accordingly  it  formed,  as  it  should  seem, 
the  basis  of  what  was  called  the  New-Jersey  Plan. 
This  rule  of  apportionment  met,  however,  with  a  decid- 
ed opposition,  and  was  negatived  in  the  convention  at 
an  early  period,  seven  states  voting  against  it,  three  be- 
ing in  its  favour,  and  one  being  divided. 


CH.  IX.]  HOUSE  OF   REPRESENTATIVES.  237 

^  326.  Another  principle  might  be,  to  apportion  the 
representation  of  the  states  according  to  the  relative 
property  of  each,  thus  making  property  the  basis  of 
rerpresentation.  This  might  commend  itself  to  some 
persons,  because  it  would  introduce  a  salutary  check 
into  the  legislature  in  regard  to  taxation,  by  securing, 
in  some  measure,  an  equalization  of  the  public  burthens, 
by  the  voice  of  those,  who  were  called  to  give  most  to- 
wards the  common  contributions.  That  taxation  ought 
to  go  hand  in  hand  with  representation  had  been  a  fa- 
vourite theory  of  the  American  people.  Under  the  con- 
federation, all  the  common  expenses  were  required  to 
be  borne  by  the  states  in  proportion  to  the  value  of 
the  land  within  each  state.  But  it  has  been  already 
seen,  that  this  mode  of  contribution  w^as  extremely  dif- 
ficult and  embarrassing,  and  unsatisfactory  in  practice, 
under  the  confederation.  There  do  not,  indeed, 
seem  to  be  any  traces  in  the  proceedings  of  the  con- 
vention, that  this  scheme  had  an  exclusive  influence  with 
any  persons  in  that  body.  It  mixed  itself  up  with  other 
considerations,  without  acquiring  any  decisive  prepond- 
erance. In  the  first  place,  it  was  easy  to  provide  a  reme- 
dial check  upon  undue  direct  taxation,  the  only  species, 
of  which  there  could  be  the  slightest  danger  of  unequal 
and  oppressive  levies.  And  it  will  be  seen,  that  this 
was  sufficiently  provided  for,  by  declaring,  that  repre- 
sentatives and  direct  taxes  should  be  apportioned  by 
the  same  ratio. 

^  327.  In  the  next  jjace,  although  property  may  not 
be  directly  aimed  at,  as  a  basis  in  the  representation, 
provided  for  by  the  constitution,  it  cannot,  on  the  other 
hand,  be  deemed  to  be  totally  excluded,  as  will  pres- 
ently be  seen.  In  the  next  place,  it  is  not  admitted,  that 
property  alone  can,  in  a  free  government,  safely  be  re- 


238    CONSTITUTION  OF  THE  U.  STATES.   [BOOK  III. 

lied  on,  as  the  sole  basis  of  representation.  It  may  be 
true,  and  probably  is,  that,  in  the  ordinary  course  of 
affairs,  it  is  not  the  interest,  or  policy  of  those,  who 
possess  property,  to  oppress  those,  who  want  it.  But,  in 
every  well-ordered  commonwealth,  persons,  as  well  as 
property,  should  possess  a  just  share  of  influence.  The 
liberties  of  the  people  are  too  dear,  and  too  sacred,  to  be 
entrusted  to  any  persons,  who  may  not,  at  all  times, 
have  a  common  sympathy  and  common  interest  with 
the  people  in  the  preservation  of  iheir  public  rights, 
privileges,  and  liberties.  Checks  and  balances,  if  not 
indispensable  to,  are  at  least  a  great  conservative  in,  the 
operations  of  all  free  governments.  And,  perhaps,  upon 
mere  abstract  theory,  it  cannot  be  justly  affirmed,  that 
either  persons  or  property,  numbers  or  wealth,  can 
safely  be  trusted,  as  the  final  repositaries  of  the  dele- 
gated powers  of  government.  By  apportioning  influ- 
ence among  each,  vigilance,  caution,  and  mutual  checks 
are  naturally  introduced,  and  perpetuated. 

^  328.  The  third  and  remaining  principle  was,  to 
apportion  the  representatives  among  the  states  accord- 
ing to  their  relative  numbers.  This  had  the  recom- 
mendation of  great  simplicity  and  uniformity  in  its  ope- 
ration, of  being  generally  acceptable  to  the  people,  and 
of  being  less  Hable  to  fraud  and  evasion,  than  any  other, 
which  could  be  devised.  Besides ;  although  wealth 
and  property  cannot  be  affirmed  to  be  in  different 
states  exactly  in  proportion  to  the  numbers  ;  they  are 
not  so  widely  separated  from  it,  as,  at  a  hasty  glance, 
might  be  imagined.  There  is,  if  not  a  natural,  at  least  a 
very  common  connexion  between  them  ;  and,  perhaps, 
an  apportionment  of  taxes  according  to  numbers  is  as 
equitable  a  rule  for  contributions  according  to  relative 
wealth,  as  any,  which  can  be  practically  obtained. 


CH.  IX.]  HOUSE  OF  REPRESENTATIVES.  239 

§  329.  The  scheme,  therefore,  under  all  the  circum- 
stances, of  making  numbers  the  basis  of  the  represen- 
tation of  the  Union,  seems  to  have  obtained  more  gen- 
eral favour,  than  any  other  in  the  convention,  because  it 
had  a  natural  and  universal  connexion  with  the  rights 
and  liberties  of  the  whole  people. 

§  330.  But  here  a  difficulty  of  a  very  serious  nature 
arose.  There  were  other  persons  in  several  of  the 
states,  than  those,  who  were  free.  There  were  some 
persons,  who  were  bound  to  service  for  a  term  of  years ; 
though  these  were  so  few,  that  they  would  scarcely 
vary  the  result  of  the  general  rule,  in  any  important  de- 
gree. There  were  Indians,  also,  in  several,  and  proba- 
bly in  most,  of  the  states  at  that  period,  who  were  not 
treated  as  citizens,  and  yet,  who  did  not  form  a  part  of 
independent  communities  or  tribes,  exercising  general 
sovereignty  and  powers  of  government  within  the  boun- 
daries of  the  states.  It  was  necessary,  therefore,  to  pro- 
vide for  these  cases,  though  they  were  attended  with  no 
practical  difficulty.  There  seems  not  to  have  been  any 
objection  to  including,  in  the  ratio  of  representation,  per- 
sons bound  to  service  for  a  term  of  years,  and  to  ex- 
cluding Indians  not  taxed.  The  real  (and  it  was  a 
very  exciting)  controversy  was  in  regard  to  slaves, 
whether  they  should  be  included  in  the  enumeration, 
or  not. 

§  331.  The  truth  is,  that  the  arrangement  adopted 
by  the  constitution  was  a  matter  of  compromise  and 
concession,  confessedly  unequal  in  its  operation,  but  a 
necessary  sacrifice  to  that  spirit  of  conciliation,  which 
was  indispensable  to  the  union  of  states  having  a  great 
diversity  of  interests,  and  physical  condition,  and  politi- 
cal institutions.  It  was  agreed,  that  slaves  should  be 
represented  under  the  mild  appellation  of  "  other  per- 


240  CONSTITUTION  OF  THE  U.   STATES.        [bOOK    III. 

sons,"  not  as  free  persons,  but  only  in  the  proportion  of 
three  fifths.     In  order  to  reconcile  the  non-slave-hold- 
ing states  to  this  provision,  another  clause  was  inserted, 
that  direct  taxes  should  be  apportioned  in  the  same 
manner  as  representatives.     So,  that,  theoretically,  re- 
presentation and  taxation  might  go  pari  passu.     This 
provision,  however,  is  more  specious  than  solid ;    for 
while,  in  the  levy  of  direct  taxes,  it  apportions  them  on 
three  fifths  of  persons  not  free,  it,  on  the  other  hand, 
really  exempts  the  other  two  fifths  from  being  taxed  at 
all,  as  property.      Whereas,  if  direct  taxes  had  been 
apportioned,  as  upon  principle  they  ought  to  be,  accord- 
ing to  the  real  value  of  property  within  the  state,  the 
whole  of  the  slaves  would  have  been  taxable,  as  prop- 
erty.    But  a  far  more  striking  inequality  has  been  dis- 
closed by  the  practical  operations  of  the  government. 
The  principle  of  representation  is  constant,  and  uniform  ; 
the  levy  of  direct  taxes  is  occasional,  and  rare.     In  the 
course  of  forty  years,  no  more  than  three  direct  taxes 
have  been  levied  ;    and  those  only  under  very  extraor- 
dinary and  pressing  circumstances.     The  ordinary  ex- 
penditures of  the  government  are,  and  always  have 
been,  derived  from  other  sources.      Imposts  upon  for- 
eign importations  have  supplied,  and  will  generally  sup- 
ply, all  the  common  wants;    and  if  these  should  not 
furnish  an  adequate  revenue,  excises  are  next  resorted 
to,  as  the  surest  and  most  convenient  mode  of  taxation. 
Direct  taxes  constitute  the  last  resort ;    and  (as  might 
have  been  foreseen)  would  never  be  laid,  until  other 
resources  had  failed. 

^  332.  Viewed  in  its  proper  light,  as  a  real  com- 
promise, in  a  case  of  conflicting  interests,  for  the  com- 
mon good,  the  provision  is  entitled  to  great  praise  for 
its  moderation,  its  aim  at  practical  utility,  and  its  ten- 


CH.  IX.]  HOUSE  OF  REPRESENTATIVES.  241 

dency  to  satisfy  the  people,  that  the  Union,  framed  by 
all,  ought  to  be  dear  to  all,  by  the  privileges  it  confers, 
as  well  as  the  blessings  it  secures.  It  had  a  material 
influence  in  reconciling  the  southern  states  to  other 
provisions  in  the  constitution,  and  especially  to  the 
power  of  making  commercial  regulations  by  a  mere 
majority,  w^hich  was  thought  peculiarly  to  favour  the 
northern  states.  It  has  sometimes  been  complained 
of,  as  a  grievance ;  but  he,  who  wishes  well  to  his  coun- 
try, will  adhere  steadily  to  it,  as  a  fundamental  policy, 
which  extinguishes  some  of  the  most  mischievous 
sources  of  all  political  divisions,  —  those  founded  on 
geographical  positions,  and  domestic  institutions. 

^  333.  Another  part  of  the  clause  regards  the  peri- 
ods, at  which  the  enumeration  or  census  of  the  inhabi- 
tants of  the  United  States  shall  be  taken,  in  order  to 
provide  for  new  apportionments  of  representatives,  ac- 
cording to  the  relative  increase  of  the  population  of  the 
states.  Various  propositions  for  this  purpose  were  laid, 
at  different  times,  before  the  convention.  It  was  pro- 
posed to  have  the  census  taken  once  in  fifteen  years,  and 
in  twenty  years  ;•  but  the  vote  finally  prevailed  in  favour 
of  ten.  The  importance  of  this  provision  for  a  decen- 
nial census  can  scarcely  be  overvalued.  It  is  the 
only  effectual  means,  by  w^hich  the  relative  powder  of  the 
several  states  could  be  justly  represented.  If  the  sys- 
tem first  established  had  been  unalterable,  very  gross 
inequalides  would  soon  have  taken  place  among  the 
states,  from  the  very  unequal  increase  of  their  popula- 
tion. The  representation  would  soon  have  exhibited  a 
system  very  analogous  to  that  of  the  house  of  commons, 
in  Great-Britain,  where  old  and  decayed  boroughs  send 
representadves,  not  only  wholly  disproportionate  to  their 
importance,  but  in  some  cases,  with  scarcely  a  single 

Abr.  31 


242    CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

inhabitant,  they  match  the  representatives  of  the  most 
populous  counties. 

§  334.  In  regard  to  the  United  States,  the  slightest 
examination  of  the  apportionment  made  under  the  first 
three  censuses  will  demonstrate  this  conclusion  in  a 
very  striking  manner.  The  representation  of  Dela- 
ware remains,  as  it  was  at  the  first  apportionment ;  that 
of  New-Hampshire,  Rhode-Island,  Connecticut,  New- 
Jersey,  and  Maryland  has  had  but  a  small  comparative 
increase ;  whilst  that  of  Massachusetts  (including  Maine) 
has  swelled  from  eight  to  twenty ;  that  of  New-York, 
from  six  to  thirty-four ;  and  that  of  Pennsylvania,  from 
eight  to  twenty-six.  In  the  mean  time,  the  new  states 
have  sprung  into  being ;  and  Ohio,  which  in  1803  was 
only  entitled  to  one,  now  counts  fourteen  representa- 
tives. The  census  of  1831  exhibits  still  more  striking 
results.  In  1790,  the  whole  population  of  the  United 
States  was  about  three  millions  nine  hundred  and 
twenty-nine  thousand;  and  in  1830,  it  was  about 
twelve  millions  eight  hundred  and  fifty -six  thousand. 
Ohio,  at  this  very  moment,  contains  at  least  one  mil- 
lion, and  New- York  two  millions  of  inhabitants.  These 
facts  show  the  wisdom  of  the  provision  for  a  decennial 
apportionment ;  and,  indeed,  it  would  otherwise  have 
happened,  that  the  system,  however  sound  at  the  begin- 
ning, would  by  this  time  have  been  productive  of  gross 
abuses,  and  probably  have  engendered  feuds  and  dis- 
contents, of  themselves  sufl^icient  to  have  occasioned  a 
dissolution  of  the  Union.  We  probably  owe  this  pro- 
vision to  those  in  the  convention,  who  were  in  favour  of 
a  national  government,  in  preference  to  a  mere  confed- 
eration of  states. 

^  335.  The  next  part  of  the  clause  relates  to  the 
total  number  of  the  house  of  representatives.     It  de- 


CH.  IX.]  HOUSE  OF  REPRESENTATIVES.  243 

clares,  that  "  the  number  of  representatives  shall  not 
exceed  one  for  every  thirty  thousand."  This  vi^as  a 
subject  of  great  interest ;  and  it  has  been  asserted,  that 
scarcely  any  article  of  the  whole  constitution  seems  to 
be  rendered  more  worthy  of  attention  by  the  weight  of 
character,  and  the  apparent  force  of  argument,  with 
which  it  was  originally  assailed.  The  number  fix- 
ed by  the  constitution  to  constitute  the  body  in  the 
first  instance,  and  until  a  census  was  taken,  was  sixty- 
five. 

^  336.  Several  objections  were  urged  against  the 
provision.  First,  that  so  small  a  number  of  represen- 
tatives would  be  an  unsafe  depositary  of  the  public  in- 
terests. Secondly,  that  they  would  not  possess  a 
proper  knowledge  of  the  local  circumstances  of  their 
numerous  constituents.  Thirdly,  that  they  would  be 
taken  from  that  class  of  citizens,  which  would  sympa- 
thize least  with  the  feelings  of  the  people,  and  be  most 
likely  to  aim  at  a  permanent  elevation  of  the  few,  on 
the  depression  of  the  many.  Fourthly,  that  defective, 
as  the  number  in  the  first  instance  would  be,  it  would 
be  more  and  more  disproportionate  by  the  increase  of 
the  population,  and  the  obstacles,  which  would  prevent 
a  correspondent  increase  of  the  representatives. 

§  337.  Time  and  experience  have  demonstrated  the 
fallacy  of  some,  and  greatly  impaired,  if  they  have  not 
utterly  destroyed,  the  force  of  all  of  these  objections. 
The  fears,  which  w^ere  at  that  period  so  studiously 
cherished  ;  the  alarms,  which  were  so  forcibly  spread  ; 
the  dangers  to  liberty,  which  were  so  strangely  exag- 
gerated ;  and  the  predominance  of  aristocratical  and 
exclusive  power,  which  were  so  confidently  predicted, 
have  all  vanished  into  air,  into  thin  air. 


244  CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 

§  338.   It  remains  only  to  take  notice  of  two  qualifi- 
cations of  the  general  principle  of  representation,  which 
are  engrafted  on  the  clause.      One  is,  that  each  state 
shall  have  at  least  one  representative  ;  the  other  is  that 
already  quoted,  that  the  number  of  representatives  shall 
not  exceed  one  for  every  30,000.      The  former  was 
indispensable  in  order  to  secure  to  each  state  a  just 
representation  in  each  branch  of  the  legislature  ;   which, 
as  the  powers  of  each  branch  were  not  exactly  co-ex- 
tensive, and  especially,  as  the  power  of  originating  tax- 
ation was  exclusively  vested  in  the  house  of  represen- 
tatives, was  indispensable  to  preserve  the  equality  of 
the  small  states,  and  to  reconcile  them  to  a  surrender 
of  their  sovereignty.     This  proviso  was  omitted  in  the 
first  draft  of  the  constitution,  though  proposed  in  one 
of  the  preceding  resolutions.     But  it  was  adopted  with- 
out resistance,  when  the  draft  passed  under  the  solemn 
discussion  of  the  convention.     The  other  was  a  matter 
of  more  controversy.     The  original  limitation  proposed 
was  40,000 ;  and  it  was  not  until  the  very  last  day  of 
the  session  of  the  convention,  that  the  number  was  re- 
duced to  30,000.     The  object  of  fixing  some  limitation 
was  to  prevent  the  future  existence  of  a  very  numer- 
ous  and   unwieldy   house   of    representatives.      The 
friends  of  a  national  government  had  no  fears,  that  the 
body  would  ever  become  too  small  for  real,  effective^ 
protecting  service.      The  danger  was,  that  from  the 
natural  impulses  of  the  popular  will,  and  the  desire  of 
ambitious  candidates  to  attain  office,  the  number  would 
be  soon  swollen  to  an  unreasonable  size,  so  that  it 
would  at  once  generate,  and  combine  factions,  obstruct 
deliberations,  and  introduce  and  perpetuate  turbulent 
and  rash  counsels. 


CH.  IX.]  HOUSE  OF    REPRESENTATIVES.  245 

^  339.  There  yet  remain  two  practical  questions  of 
no  inconsiderable  importance,  connected  with  the  clause 
of  the  constitution  now  under  consideration.  One  is, 
what  are  to  be  deemed  direct  taxes  within  the  meaning 
of  the  clause.  The  other  is,  in  what  manner  the  ap- 
portionment of  representatives  is  to  be  made.  The 
first  will  naturally  come  under  review  in  examining  the 
powers  of  congress,  and  the  constitutional  limitations 
upon  those  powers ;  and  may  therefore,  for  the  present, 
be  passed  over.  The  other  was  a  subject  of  much  dis- 
cussion at  the  time,  when  the  first  apportionment  was 
before  congress  after  the  first  census  was  taken ;  and 
has  been  recently  revived  with  new  and  increased  in- 
terest and  ability.  It  deserves,  therefore,  a  very  delib- 
erate examination. 

^  340.  The  language  of  the  constitution  is,  that 
"representatives  and  direct  taxes  shall  be  apportioned 
"among  the  several  states,  &:c.  according  to  their 
"respective  numbers;"  and  at  the  first  view  it  would 
not  seem  to  involve  the  slightest  difficulty.  A 
moment's  reflection  will  dissipate  the  illusion,  and 
teach  us,  that  there  is  a  difficulty  intrinsic  in  the  very 
nature  of  the  subject.  In  regard  to  direct  taxes,  the 
natural  course  would  be  to  assume  a  particular  sum  to 
be  raised,  as  three  millions  of  dollars ;  and  to  appor- 
tion it  among  the  states  according  to  their  relative  num- 
bers. But  even  here,  there  will  always  be  a  very 
small  fractional  amount  incapable  of  exact  distribution, 
since  the  numbers  in  each  state  will  never  exactly  coin- 
cide with  any  common  divisor,  or  give  an  exact  aliquot 
part  for  each  state  without  any  remainder.  But,  as  the 
amount  may  be  carried  through  a  long  series  of  de- 
scending money  fractions,  it  may  be  ultimately  reduced 
to  the  smallest  fraction  of  any  existing,  or  even  imagin- 
ary coin. 


246     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

^341.  But  the  difficulty  is  far  otherwise  in  regard 
to  representatives.  Here,  there  can  be  no  subdivision 
of  the  unit ;  each  state  must  be  entitled  to  an  entire  re- 
presentative, and  a  fraction  of  a  representative  is  inca- 
pable of  apportionment.  Yet  it  will  be  perceived  at 
once,  that  it  is  scarcely  possible,  and  certainly  is  wholly 
improbable,  that  the  relative  numbers  in  each  state 
should  bear  such  an  exact  proportion  to  the  aggregate, 
that  there  should  exist  a  common  divisor  for  all,  which 
should  leave  no  fraction  in  any  state.  Such  a  case 
never  yet  has  existed  ;  and  in  all  human  probabiHty  it 
never  will.  Every  common  divisor,  hitherto  applied, 
has  left  a  fraction  greater,  or  smaller  in  every  state ; 
and  what  has  been  in  the  past  must  continue  to  be  for 
the  future.  Assume  the  whole  population  to  be  three, 
or  six,  or  nine,  or  twelve  millions,  or  any  other  num- 
ber ;  if  you  follow  the  injunctions  of  the  constitution, 
and  attempt  to  apportion  the  representatives  according 
to  the  numbers  in  each  state,  it  will  be  found  to  be 
absolutely  impossible.  The  theory,  however  true, 
becomes  practically  false  in  its  application.  Each  state 
may  have  assigned  a  relative  proportion  of  representa- 
tives up  to  a  given  number,  the  whole  being  divisible 
by  some  common  divisor ;  but  the  fraction  of  popula- 
tion belonging  to  each  beyond  that  point  is  left  unpro- 
vided for.  So  that  the  apportionment  is,  at  best,  only 
an  approximation  to  the  rule  laid  down  by  the  consti- 
tution, and  not  a  strict  compliance  with  the  rule.  The 
fraction  in  one  state  may  be  ten  times  as  great,  as 
that  in  another ;  and  so  may  differ  in  each  state  in  any 
assignable  mathematical  proportion.  What  then  is  to 
be  done?  Is  the  constitution  to  be  wholly  disregarded 
on  this  point  ?  Or  is  it  to  be  followed  out  in  its  true 
spirit,  though  unavoidably  differing  from  the  letter,  by 


CH.  IX.]  HOUSE  OF  REPRESENTATIVES.  247 

the  nearest  approximation  to  it  ?  If  an  additional  re- 
presentative can  be  assigned  to  one  state  beyond  its 
relative  proportion  to  the  whole  population,  it  is  equally 
true,  that  it  can  be  assigned  to  all,  that  are  in  a  similar 
predicament.  If  a  fraction  admits  of  representation  in 
any  case,  what  prohibits  the  application  of  the  rule  to 
all  fractions  ?  The  only  constitutional  limitation  seems 
to  be,  that  no  state  shall  have  more  than  one  represen- 
tative for  every  thirty  thousand  persons.  Subject  to 
this,  the  truest  rule  seems  to  be,  that  the  apportion- 
ment ought  to  be  the  nearest  practical  approximation 
to  the  terms  of  the  constitution ;  and  the  rule  ought  to 
be  such,  that  it  shall  always  work  the  same  way  in  re- 
gard to  all  the  states,  and  be  as  little  open  to  cavil,  or 
controversy,  or  abuse,  as  possible. 
w  ^  342.  But  it  may  be  asked,  what  are  the  first  steps 
to  be  taken  in  order  to  arrive  at  a  constitutional  appor- 
tionment 7  Plainly,  by  taking  the  aggregate  of  popula- 
tion in  all  the  states,  (according  to  the  constitutional 
rule,)  and  then  ascertain  the  relative  proportion  of  the 
population  of  each  state  to  the  population  of  the  whole. 
This  is  necessarily  so  in  regard  to  direct  taxes ;  and 
there  is  no  reason  to  say,  that  it  can,  or  ought  to  be 
otherwise  in  regard  to  representatives ;  for  that  would 
be  to  contravene  the  very  injunctions  of  the  constitu- 
tion, which  require  the  like  rule  of  apportionment  in 
each  case.  In  the  one,  the  apportionment  may  be  run 
down  below  unity  ;  in  the  other,  it  cannot.  But  this 
does  not  change  the  nature  of  the  rule,  but  only  the 
extent  of  its  application. 

"  ^  343.  The  next  clause  of  the  second  section  of  the 
first  article,  is :  "  When  vacancies  happen  in  the  repre- 
"  sentation  of  any  state,  the  executive  authority  thereof 
"  shall  issue  writs  of  election  to  fill  such  vacancies."     . 


248  CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

§  344.  The  propriety  of  adopting  this  clause  does 
not  seem  to  have  furnished  any  matter  of  discussion, 
either  in,  or  out  of  the  convention.  It  was  obvious, 
that  the  power  ought  to  reside  somewhere ;  and  must 
be  exercised,  either  by  the  state  or  national  govern- 
ment, or  by  some  department  thereof.  The  friends  of 
state  powers  would  naturally  rest  satisfied  with  leaving 
it  with  the  state  executive ;  and  the  friends  of  the  nation- 
al government  would  acquiesce  in  that  arrangement,  if 
other  constitutional  provisions  existed  sufl^Lcient  to  pre- 
serve its  due  execution.  The  provision,  as  it  stands, 
has  the  strong  recommendation  of  public  convenience, 
and  facile  adaptation  to  the  particular  local  circum- 
stances of  each  state.  Any  general  regulation  would 
have  worked  with  some  inequality. 

^  345.  The  next  clause  is,  that  "  the  house  of  repre- 
"  sentatives  shall  choose  their  speaker,  and  other 
"  officers,  and  shall  have  the  sole  power  of  impeach- 
"  ment." 

§  346.  Each  of  these  privileges  is  of  great  practical 
value  and  importance.  In  Great  Britain  the  house  of 
commons  elect  their  own  speaker ;  but  he  must  be  ap- 
proved by  the  king.  This  approval  is  now  altogether 
a  matter  of  course ;  but  anciently,  it  seems,  the  king 
intimated  his  wish  previously,  in  order  to  avoid  the 
necessity  of  a  refusal ;  and  it  was  acceded  to.  The 
very  language  used  by  the  speakers  in  former  times,  in 
order  to  procure  the  approval  of  the  crown,  was  such 
as  w^ould  not  now  be  tolerated  ;  and  indicated,  at  least, 
a  disposition  to  undue  subserviency.  A  similar  power 
of  approval  existed  in  the  royal  governors  in  many 
of  the  colonies  before  the  revolution.  The  exclusive 
right  of  choosing  a  speaker,  without  any  appeal  to,  or 
approval  by  any  other  department  of  the  government. 


CH.  IX.]  HOUSE  OF  REPRESENTATIVES.  249 

is  an  improvement  upon  the  British  system.  It  secures 
a  more  independent  and  unlimited  choice  on  the  part 
of  the  house,  according  to  the  merits  of  the  individual, 
and  their  own  sense  of  duty.  It  avoids  those  incon- 
veniences and  coUisions,  which  might  arise  from  the 
interposition  of  a  negative  in  times  of  high  party  excite- 
ment. It  extinguishes  a  constant  source  of  jealousy  and 
heart-burning ;  and  a  disposition  on  one  side  to  exert 
an  undue  influence,  and  on  the  other  to  assume  a  hos- 
tile opposition.  It  relieves  the  executive  department 
from  all  the  embarrassments  of  opposing  the  popular 
will ;  and  the  house  from  all  the  irritation  of  not  consult- 
ing the  cabinet  wishes. 

§  347.  The  other  power,  the  sole  power  of  impeach- 
ment, has  a  far  wider  scope  and  operation.  An  im- 
peachment, as  described  in  the  common  law  of  England, 
is  a  presentment  by  the  house  of  commons,  the  most 
solemn  grand  inquest  of  the  whole  kingdom,  to  the 
house  of  lords,  the  most  high  and  supreme  court  of 
criminal  jurisdiction  of  the  kingdom.  The  articles  of 
impeachment  are  a  kind  of  bill  of  indictment  found  by 
the  commons,  and  tried  by  the  lords,  who  are,  in  cases 
of  misdemeanors,  considered,  not  only  as  their  own 
peers,  but  as  the  peers  of  the  whole  nation.  The 
origin  and  history  of  the  jurisdiction  of  parliament,  in 
cases  of  impeachment,  are  summarily  given  by  Mr. 
Woodeson  ;  but  little  can  be  gathered  from  it,  which  is 
now  of  much  interest,  and,  like  most  other  legal  anti- 
quities, it  is  involved  in  great  obscurity.  To  what 
classes  of  offenders  it  applies,  will  be  more  properly 
an  inquiry  hereafter.  In  the  constitution  of  the  United 
States,  the  house  of  representatives  exercises  the  func- 
tions of  the  house  of  commons  in  regard  to  impeach- 
ments ;  and  the  senate  (as  we  shall  hereafter  see)  the 

Abr.  32 


250        CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

functions  of  the  house  of  lords  in  relation  to  the  trial  of 

*the  party  accused.  The  principles  of  the  common 
law,  so  far  as  the  jurisdiction  is  to  be  exercised,  are 
deemed  of  primary  obligation  and  government.  The 
object  of  prosecutions  of  this  sort  in  both  countries  is 
to  reach  high  and  potent  offenders,  such  as  might  be 
presumed  to  escape  punishment  in  the  ordinary  tribu- 
nals, either  from  their  own  extraordinary  influence,  or 
from  the  imperfect  organization  and  powers  of  those 
tribunals.  These  prosecutions  are,  therefore,  con- 
ducted by  the  representatives  of  the  nation,  in  their 
public  capacity,  in  the  face  of  the  nation,  and  upon  a 
responsibility,  which  is  at  once  felt,  and  reverenced  by 
the  whole  community.     The  notoriety  of  the  proceed- 

/ings  ;  the  solemn  manner,  in  which  they  are  conducted ; 
the  deep  extent,  to  which  they  affect  the  reputation  of 
the  accused ;  the  ignominy  of  a  conviction,  which  is  to 
be  known  through  all  time  ;  and  the  glory  of  an  acquit- 
tal, which  ascertains  and  confirms  innocence  ;  —  these 

^  are  all  calculated  to  produce  a  vivid  and  lasting  interest 
in  the  public  mind ;  and  to  give  to  such  prosecutions, 

^hen  necessary,  a  vast  importance,  both  as  a  check  to 
crime,  and  an  incitement  to  virtue. 

§  348.  This  subject  will  be  resumed  hereafter,  when 
the  other  provisions  of  the  constitution,  in  regard  to 
impeachments,  come  under  review.  It  does  not  ap- 
pear, that  the  vesting  of  the  power  of  impeachment  in 
the  house  of  representatives  was  deemed  a  matter  of 
serious  doubt  or  question,  either  in  the  convention,  or 
with  the  people.  If  the  true  spirit  of  the  constitution  is 
consulted,  it  would  seem  difficult  to  arrive  at  any  other 
conclusion,  than  of  its  fitness.  It  is  designed,  as  a 
method  of  national  inquest  into  the  conduct  of  public 
men.    If  such  is  the  design,  who  can  so  properly  be  the 


r 


CH.  IX.]  HOUSE  OF  REPRESENTATIVES.  251 

inquisitors  for  the  nation,  as  the  representatives  of  the 
people  themselves  ?  Tliey  must  be  presumed  to  be 
watchful  of  the  interests,  alive  to  the  sympathies,  and 
ready  to  redress  the  grievances,  of  the  people.  If  it  is 
made  their  duty  to  bring  official  delinquents  to  justice, 
they  can  scarcely  fail  of  performing  it  without  pjiblic 
denunciation,  and  political  desertion,  on  the  part  of  their 
constituents. 


\ 


252  CONSTITUTION  OF  THE  CJ.  STATES.    [bOOK  III. 

CHAPTER  X. 

THE    SENATE. 

^  349.  The  third  section  of  the  first  article  relates 
to  the  organization  and  powers  of  the  senate. 

^  350.  In  considering  the  organization  of  the  senate, 
our  inquiries  naturally  lead  us  to  ascertain ;  first,  the 
nature  of  the  representation  and  vote  of  the  states  there- 
in; secondly,  the  mode  of  appointment;  thirdly,  the 
number  of  the  senators  ;  fourthly,  their  term  of  service ; 
and  fifthly,  their  qualifications. 

§  351.  The  first  clause  of  the  third  section  is  in  the 
following  words:  "The  senate  of  the  United  States 
"  shall  be  composed  of  two  senators  from  each  state, 
"  chosen  by  the  legislature  thereof  for  six  years ;  and 
"  each  senator  shall  have  one  vote." 

§  352.  In  the  first  place,  the  nature  of  the  represen- 
tation and  vote  in  the  senate.  Each  state  is  entitled  to 
two  senators;  and  each  senator  is  entitled  to  one  vote. 
This,  of  course,  involves  in  the  very  consdtution  of  this 
branch  of  the  legislature  a  perfect  equality  among  all 
the  states,  without  any  reference  to  their  respective 
size,  population,  wealth,  or  power.  In  this  respect 
there  is  a  marked  contrast  between  the  senate  and  the 
house  of  representatives.  In  the  latter,  there  is  a  repre- 
sentation of  the  people  according  to  the  relative  popu- 
lation of  each  state  upon  a  given  basis;  in  the  former, 
each  state  in  its  political  capacity  is  represented  upon 
a  footing  of  perfect  equality,  like  a  congress  of  sove- 
reigns, or  ambassadors,  or  like  an  assembly  of  peers. 
The  only  difference  between  it  and  the  continental 
congress  under  the  old  confederation  is,  that  in  this 


CH.  X.]  THE    SENATE.  253 

the  vote  was  by  states ;  in  the  senate,  each  senator  has 
a  single  vote.  So  that,  though  they  represent  states, 
they  vote  as  individuals.  The  vote  of  the  senate  thus 
may,  and  often  does,  become  a  mixed  vote,  embracing 
a  part  of  the  senators  from  some  of  the  states  on  one 
side,  and  another  part  on  the  other. 

^  353.  It  is  obvious,  that  this  arrangement  could  only 
arise  from  a  compromise  between  independent  states  ; 
and  it  must  have  been  less  the  result  of  theory,  than  "of 
a  spirit  of  amity,  and  of  mutual  deference  and  conces- 
sions, which  the  peculiarity  of  the  situation  of  the  United 
States  rendered  indispensable."  It  constituted  one 
of  the  great  struggles  between  the  large  and  the  small 
states,  which  was  constantly  renewed  in  the  conven- 
tion, and  impeded  it  in  every  step  of  its  progress  in  the 
formation  of  the  constitution.  The  struggle  applied  to 
the  organization  of  each  branch  of  the  legislature.  The 
small  states  insisted  upon  an  equality  of  vote  and  rep- 
resentation in  each  branch ;  and  the  large  states  upon 
a  vote  in  proportion  to  their  relative  importance  and 
population.  Upon  this  vital  question  there  was  so  near 
a  balance  of  the  states,  that  a  union  in  any  form  of  gov- 
ernment, which  provided  either  for  a  perfect  equaUty  or 
inequality  of  the  states  in  both  branches  of  the  legisla- 
ture, became  utterly  hopeless.  If  the  basis  of  the 
senate  was  an  equality  of  representation,  the  basis  of 
the  house  must  be  in  proportion  to  the  relative  popula- 
tion of  the  states.  A  compromise  was,  therefore,  in- 
dispensable, or  the  convention  must  be  dissolved.  The 
small  states  at  length  yielded  the  point,  as  to  an  equality 
of  representation  in  the  house,  and  acceded  to  a  repre- 
sentation proportionate  to  the  federal  numbers.  But 
they  insisted  upon  an  equaUty  in  the  senate.  To  this 
the  large  states  were  unwilling  to  assent ;  and  for  a 


254 


CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 


time  the  states  were,  on  this  point,  equally  divided. 
Finally,  the  subject  was  referred  to  a  committee,  who 
reported  a  scheme,  which  became,  with  some  amend- 
ments, the  basis  of  the  representation,  as  it  now  stands. 

^  354.  Whatever  may  now  be  thought  of  the  rea- 
soning of  the  contending  parties,  no  person,  who  pos- 
sesses a  sincere  love  of  country,  and  wishes  for  the  per- 
manent union  of  the  states,  can  doubt,  that  the  com- 
promise actually  made  was  well  founded  in  policy,  and 
may  now  be  fully  vindicated  upon  the  highest  principles 
of  political  wisdom,  and  the  true  nature  of  the  gov- 
ernment, which  was  intended  to  be  established. 

§  355.  No  system  could  be  more  admirably  con- 
trived to  ensure  due  deliberation  and  inquiry,  and  just 
results  in  all  matters  of  legislation.  No  law  or  resolu- 
tion can  be  passed  without  the  concurrence,  first  of  a 
majority  of  the  people,  and  then  of  a  majority  of  the 
states.  The  interest,  and  passions,  and  prejudices  of 
a  district  are  thus  checked  by  the  influence  of  a  whole 
state;  the  like  interests,  and  passions,  and  prejudices 
of  a  state,  or  of  a  majority  of  the  states,  are  met  and 
controlled  by  the  voice  of  the  people  of  the  nation.  It 
may  be  thought,  that  this  complicated  system  of  checks 
may  operate,  in  some  instances,  injuriously,  as  well  as 
beneficially.  But  if  it  should  occasionally  work  unequal- 
ly, or  injuriously,  its  general  operation  will  be  salutary 
and  useful.  The  disease  most  incident  to  free  govern- 
ments is  the  faciUty  and  excess  of  law-making;  and 
while  it  never  can  be  the  permanent  interest  of  either 
branch  to  interpose  any  undue  restraint  upon  the  ex- 
ercise of  all  fit  legislation,  a  good  law  had  better  occa- 
sionally fail,  rather  than  bad  laws  be  multiplied  with  a 
heedless  and  mischievous  frequency.  Even  reforms, 
to  be  safe,  must,  in  general,  be  slow  ;  and  there  can  be 


CH.  X.]  THE    SENATE.  255 

little  danger,  that  public  opinion  will  not  sufficiently 
stimulate  all  public  bodies  to  changes,  which  are  at  once 
desirable,  and  politic.  All  experience  proves,  that  the 
human  mind  is  more  eager  and  restless  for  changes, 
than  tranquil  and  satisfied  with  existing  institutions. 
Besides;  the  large  states  will  always  be  able,  by  their 
power  over  the  supplies,  to  defeat  any  unreasonable 
exertions  of  this  prerogative  by  the  smaller  states. 

^  356.  This  reasoning,  w^hich  theoretically  seems 
entided  to  great  weight,  has  in  the  progress  of  the 
government,  been  fully  realized.  It  has  not  only 
been  demonstrated,  that  the  senate,  in  its  actual  or- 
ganization, is  well  adopted  to  the  exigencies  of  the 
nation ;  but  that  it  is  a  most  important  and  valuable 
part  of  the  system,  and  the  real  balance-wheel,  which 
adjusts,  and  regulates  its  movements.  The  other 
auxiliary  provisions  in  the  same  clause,  as  to  the  mode 
of  appointment  and  duration  of  office,  will  be  found 
to  conduce  very  largely  to  the  same  beneficial  end. 

§  357.  Secondly ;  the  mode  of  appointment  of 
the  senators.  They  are  to  be  chosen  by  the  legislature 
of  each  state.'  Three  schemes  presented  themselves, 
as  to  the  mode  of  appointment ;  one  was  by  the  legis- 
lature of  each  state ;  another  was  by  the  people  there- 
of; and  a  third  was  by  the  other  branch  of  the  national 
legislature,  either  directly,  or  out  of  a  select  nomination. 
The  last  scheme  was  proposed  in  the  convention,  in 
what  was  called  the  Virginia  scheme,  one  of  the  res- 
olutions, declaring,  "  that  the  members  of  the  second 
branch  (the  senate)  ought  to  be  elected  by  those  of 
the  first  (the  house  of  representatives)  out  of  a  proper 
number  nominated  by  the  individual  legislatures"  (of 
the  states.)  It  met,  however,  with  no  decided  support, 
and  w^as  negatived,  no  state  voting  in  its  favour,  nine 


256  CONSTITUTION  OF  THE  U.  STATES.    [^BOOK  III. 

States  voting  against  it,  and  one  being  divided.  The 
second  scheme,  of  an  election  by  the  people  in  districts, 
or  otherwise,  seems  to  have  met  with  as  little  favour. 
The  first  scheme,  that  of  an  election  by  the  legislature, 
finally  prevailed  by  a  unanimous  vote. 

§  358.  The  constitution  has  not  provided  for  the 
manner,  in  which  the  choice  shall  be  made  by  the 
state  legislatures,  whether  by  a  joint,  or  by  a  concur- 
rent vote  ;  the  latter  is,  where  both  branches  form  one 
assembly,  and  give  a  united  vote  numerically  ;  the 
former  is,  where  each  branch  gives  a  separate  and  inde- 
pendent vote.  As  each  of  the  state  legislatures  now 
consists  of  two  branches,  this  is  a  very  important  prac- 
tical question.  Generally,  but  not  universally,  the 
choice  of  senators  is  made  by  a  concurrent  vote. 
Another  question  might  be  suggested,  whether  the  ex- 
ecutive constitutes  a  part  of  the  legislature  for  such  a 
purpose,  in  cases  where  the  state  consutution  gives 
him  a  qualified  negative  upon  the  laws.  But  this  has 
been  silendy  and  universally  settled  against  the  execu- 
tive participation  in  the  appointment. 

^  359.  Thirdly  ;  the  number  of  senators.  Each 
state  is  entitled  to  two  senators.  It  is  obvious,  that  to 
ensure  competent  knowledge  and  ability  to  discharge 
all  the  functions  entrusted  to  the  senate,  (of  which 
more  will  be  said  hereafter,)  it  is  indispensable,  that  it 
should  consist  of  a  number  sufficiendy  large  to  ensure 
a  sufficient  variety  of  talents,  experience,  and  practical 
skill,  for  the  discharge  of  all  their  duties.  The  legis- 
lative power  alone,  for  its  enlightened  and  prudent  ex- 
ercise, requires  (as  has  been  already  shown)  no  small 
share  of  patriotism,  and  knowledge,  and  ability.  In 
propordon  to  the  extent  and  variety  of  the  labours  of 
legislation,  there  should  be  members,  who  should  share 


CH.  X.J  THE    SENATE.  257 

them,  in  order,  that  there  may  be  a  punctual  and  per- 
fect performance  of  them.  If  the  number  be  very 
small,  there  is  danger,  that  some  of  the  proper  duties 
will  be  overlooked,  or  neglected,  or  imperfectly  attend- 
ed to.  No  human  genius,  or  industry,  is  adequate  to 
all  the  vast  concerns  of  government,  if  it  be  not  aided 
by  the  power  and  skill  of  numbers.  The  senate 
ought,  therefore,  on  this  account  alone,  to  be  some- 
what numerous,  though  it  need  not,  and  indeed  ought 
not,  for  other  reasons,  to  be  as  numerous,  as  the  house. 
Besides  ;  numbers  are  important  to  give  to  the  body 
a  sufficient  firmness  to  resist  the  influence,  which  the 
popular  branch  will  ever  be  solicitous  to  exert  over 
them.  A  very  small  body  is  more  easily  overawed, 
and  intimidated,  and  controlled  by  external  in- 
fluences, than  one  of  a  reasonable  size,  embracing 
weight  of  character,  and  dignity  of  talents.  Numbers 
alone,  in  many  cases,  confer  power  ;  and  what  is  of 
not  less  importance,  they  present  more  resistance  to 
corruption  and  intrigue.  A  body  of  five  may  be  bribed, 
or  overborne,  when  a  body  of  fifty  would  be  an  irre- 
sistible barrier  to  usurpation. 

^  360.  In  addition  to  this  consideration,  it  is  desira- 
ble, that  a  state  should  not  be  wholly  unrepresented  in 
the  national  councils  by  mere  accident,  or  by  the  tem- 
porary absence  of  its  representative.  If  there  be  but 
a  single  representative,  sickness  or  casualty  may  de- 
prive the  state  of  its  vote  on  the  most  important  occa- 
sions. It  was  on  this  account,  (as  well  as  others) 
that  the  confederation  entitled  each  state  to  send  not 
less  than  tivo^  nor  more  than  seven  delegates.  In  crit- 
ical cases,  too,  it  might  be  of  great  importance  to  have 
an  opportunity  of  consulting  with  a  colleague  or  col- 
leagues, having  a  common  interest  and  feeling  for  the 

Mr.  33 


258  CONSTITUTION    OF    THE    U.    STATES.      [bOOK  III. 

State.  And  if  it  be  not  always  in  the  strictest  sense 
true,  that  in  the  multitude  of  counsel  there  is  safety  ; 
there  is  a  sufficient  foundation  in  the  infirmity  of  hu- 
man nature  to  make  it  desirable  to  gain  the  advantage 
of  the  wisdom,  and  information,  and  reflection  of  other 
independent  minds,  not  labouring  under  the  suspicion 
of  any  unfavourable  bias.  These  reasons  may  be  pre- 
sumed to  have  had  their  appropriate  weight  in  the 
deliberations  of  the  convention.  If  more  than  one 
representative  of  a  state  w^as  to  be  admitted  into  the 
senate,  the  least  practicable  ascending  number  was 
that  adopted.  At  that  time  a  single  representative  of 
each  state  would  have  made  the  body  too  small  for  all 
the  purposes  of  its  institution,  and  all  the  objects  be- 
fore explained.  It  would  have  been  composed  but  of 
thirteen  ;  and  supposing  no  absences,  which  could  not 
ordinarily  be  calculated  upon,  seven  would  constitute 
a  majority  to  decide  all  the  measures.  Twenty-six 
was  not,  at  that  period,  too  large  a  number  for  digni- 
ty, independence,  wisdom,  experience,  and  efficiency. 
And,  at  the  present  moment,  when  the  states  have 
grown  to  twenty-four,  it  is  found,  that  forty-eight  is  a 
number  quite  small  enough  to  perform  the  great  na- 
tional functions  confided  to  it,  and  to  embody  the  re- 
quisite skill  and  ability  to  meet  the  increased  exigen- 
cies, and  multiplied  duties  of  the  office.  There  is 
probably  no  legislative  body  on  earth,  whose  duties 
are  more  various,  and  interesting,  and  important  to 
the  public  welfare  ;  and  none,  which  calls  for  higher 
talents,  and  more  comprehensive  attainments,  and 
more  untiring  industry,  and  integrity. 

^  361.  Fourthly  ;  the  term  of  service  of  the  sena- 
tors. It  is  for  six  years  ;  although,  as  will  be  presently 
seen,  another  element  in  the  composition  of  that  body 
is,  that  one  third  of  it  is  changed  every  two  years. 


CH.  X.]  THE    SENATE.  259 

What  would  be  the  most  proper  period  of  office  for 
senators,  was  an  inquiry,  admitting  of  a  still  wider 
range  of  argument  and  opinion,  than  what  would  be 
the  most  proper  for  the  members  of  the  house  of  rep- 
resentatives. The  subject  was  confessedly  one  full 
of  intricacy,  and  doubt,  upon  which  the  wisest  states- 
men might  well  entertain  very  different  views,  and 
the  best  patriots  might  well  ask  for  more  information, 
without,  in  the  slightest  degree,  bringing  into  question 
their  integrity,  their  love  of  liberty,  or  their  devotion 
to  a  republican  government. 

^  362.  The  objections  to  the  senatorial  term  of  office 
all  resolve  themselves  into  a  single  argument,  however 
varied  in  its  forms,  or  illustrations.  That  argument  is, 
that  political  power  is  liable  to  be  abused  ,*  and  that 
the  great  security  for  public  liberty  consists  in  bringing 
home  responsibility,  and  dependence  in  those,  who  are 
entrusted  with  office  ;  and  these  are  best  attained  by 
short  periods  of  office,  and  frequent  expressions  of  pub- 
lic opinion  in  the  choice  of  officers.  If  the  argument 
is  admitted  in  its  most  ample  scope,  it  still  leaves  the 
question  open  to  much  discussion,  what  is  the  proper 
period  of  office,  and  how  frequent  the  elections  should 
be.  This  question  must,  in  its  nature,  be  complicated ; 
and  may  admit,  if  it  does  not  absolutely  require,  dif- 
ferent answers,  as  applicable  to  different  functionaries. 
Without  wandering  into  ingenious  speculations  upon 
the  topic  in  its  most  general  form,  our  object  will  be 
to  present  the  reasons,  which  have  been,  or  may  be 
relied  on,  to  establish  the  sound  policy  and  wisdom  of 
the  duration  of  office  of  the  senators  as  fixed  by  the 
constitution. 

^  363.  In  the  first  place,  then,  all  the  reasons,  which 
apply  to  the  duration  of  the  legislative  office  generally, 


260  CONSTITUTION    OF    THE    U.    STATES.    [BOOK  III. 

founded  upon  the  advantages  of  various  knov^ledge, 
and  experience  in  the  principles  and  duties  of  legisla- 
tion, may  be  urged  w^ith  increased  force  in  regard  to 
the  senate.  A  good  government  implies  two  things  ; 
first,  fidelity  to  the  object  of  government,  which  is  the 
happiness  of  the  people  ;  secondly,  a  knowledge  of  the 
means,  by  which  that  object  is  to  be  attained.  Some 
governments  are  deficient  in  both  these  qualities ;  most 
are  deficient  in  the  first.  Some  of  our  wisest  states- 
men have  not  scrupled  to  assert,  that  in  the  American 
governments  too  little  attention  has  been  paid  to  the 
latter. 

§  364.  A  well  constituted  senate,  then,  which  should 
interpose  some  restraints  upon  the  sudden  impulses  of 
a  more  numerous  branch,  would,  on  this  account,  be  of 
great  value.  But  its  value  would  be  incalculably  in- 
creased by  making  its  term  of  office  such,  that  with 
moderate  industry,  talents,  and  devotion  to  the  public 
service,  its  members  could  scarcely  fail  of  having  the 
reasonable  information,  which  would  guard  them  against 
gross  errors,  and  the  reasonable  firmness,  which  would 
enable  them  to  resist  visionary  speculations,  and  pop- 
ular excitements.  If  public  men  know,  that  they  may 
safely  wait  for  the  gradual  action  of  a  sound  public 
opinion,  to  decide  upon  the  merit  of  their  actions  and 
measures,  before  they  can  be  struck  down,  they  will 
be  more  ready  to  assume  responsibility,  and  pretermit 
present  popularity  for  future  solid  reputation.  If  they 
are  designed,  by  the  very  structure  of  the  government, 
to  secure  the  states  against  encroachments  upon  their 
rights  and  liberties,  this  very  permanence  of  office  adds 
new  means  to  efiectuate  the  object.  Popular  opinion, 
may,  perhaps,  in  its  occasional  extravagant  sallies,  at 
the  instance  of  a  fawning  demagogue,   or   a   favorite 


CH.  X.]  THE  SENATE.  261 

chief,  incline  to  overleap  the  constitutional  barriers,  in 
order  to  aid  their  advancement,  or  gratify  their  ambi- 
tion. But  the  solid  judgment  of  a  senate  may  stay  the 
evil,  if  its  ov^n  duration  of  power  exceeds  that  of  the 
other  branches  of  the  government,  or  if  it  combines  the 
joint  durability  of  both.  In  point  of  fact,  the  senate 
has  this  desirable  limit.  It  combines  the  period  of 
office  of  the  executive  with  that  of  the  members  of  the 
house  ;  while  at  the  same  time,  from  its  own  biennial 
changes,  (as  we  shall  presently  see,)  it  is  silently  sub- 
jected to  the  deliberate  voice  of  the  states. 

^  365,  In  the  next  place,  mutability  in  the  public 
councils,  arising  from  a  rapid  succession  of  new  mem- 
bers, is  found  by  experience  to  work,  even  in  domestic 
concerns,  serious  mischiefs.  It  is  a  known  fact  in  the 
history  of  the  states,  that  every  new  election  changes 
nearly  or  quite  one  half  of  its  representatives  ;  and  in 
the  national  government  changes  less  frequent,  or  less 
numerous  can  scarcely  be  expected.  From  this  change 
of  men,  there  must  unavoidably  arise  a  change  of  opin- 
ions ;  and  with  this  change  of  opinions  a  correspondent 
change  of  measures.  Now  experience  demonstrates, 
that  a  continual  change,  even  of  good  measures  for 
good,  is  inconsistent  with  every  rule  of  prudence  and 
every  prospect  of  success.  In  all  human  atfairs,  time 
is  required  to  consolidate  the  elements  of  the  best  con- 
certed measures,  and  to  adjust  the  little  interferences, 
which  are  incident  to  all  legislation.  Perpetual  changes 
in  public  institutions  not  only  occasion  intolerable  con- 
troversies, and  sacrifices  of  private  interests  ;  but  check 
the  growth  of  that  steady  industry  and  enterprise,  which, 
by  wise  forecast,  lays  up  the  means  of  future  prosperity. 

^  366.  But  the  ill  effects  of  a  mutable  government 
are  still  more  strongly  felt  in  the  intercourse  with  for- 


262     CONSTITUTION  OF  THE  U.  STATES.  [BOOK  III. 

eign  nations.  It  forfeits  the  respect  and  confidence  of 
foreign  nations,  and  all  the  advantages  connected  with 
national  character.  It  not  only  lays  its  measures  open 
to  the  silent  operations  of  foreign  intrigue  and  man- 
agement ;  but  it  subjects  its  whole  policy  to  be  coun- 
teracted by  the  wiser  and  more  stable  policy  of  its 
foreign  rivals  and  adversaries.  One  nation  is  to  an- 
other, what  one  individual  is  to  another,  with  this  mel- 
ancholy distinction  perhaps,  that  the  former,  with  fewer 
benevolent  emotions  than  the  latter,  are  under  fewer 
restraints  also  from  taking  undue  advantages  of  the  in- 
discretions of  each  other.  If  a  nation  is  perpetually 
fluctuating  in  its  measures,  as  to  the  protection  of  agri- 
culture, commerce,  and  manufactures,  it  exposes  all  its 
infirmities  of  purpose  to  foreign  nations  ;  and  the  latter 
with  a  systematical  sagacity  will  sap  all  the  foundations 
of  its  prosperity. 

§  367.  Further ;  foreign  governments  can  never 
safely  enter  into  any  permanent  arrangements  with 
one,  whose  councils  and  government  are  perpetually 
fluctuating.  It  was  not  unreasonable,  therefore,  for 
them  to  object  to  the  continental  congress,  that  they 
could  not  guaranty  the  fulfilment  of  any  treaty ;  and 
therefore  it  was  useless  to  negotiate  any.  To  secure 
the  respect  of  foreign  nations,  there  must  be  power  to 
fulfil  engagements ;  confidence  to  sustain  them  ;  and 
durability  to  ensure  their  execution  on  the  part  of  the 
government.  National  character  in  cases  of  this  sort 
is  inestimable.  It  is  not  sufficient,  that  there  should 
be  a  sense  of  justice,  and  disposition  to  act  right ;  but 
there  must  be  an  enlightened  permanency  in  the  policy 
of  the  government. 

^  368.  Considering,  then,  the  various  functions  of 
the  senate,  the  qualifications  of  skill,  experience,  and 


CH.  X.]  THE  SENATE.  263 

information,  which  are  required  to  discharge  them,  and 
the  importance  of  interposing,  not  a  nominal,  but  a  real 
check,  in  order  to  guard  the  states  from  usurpations 
upon  their  authority,  and  the  people  from  becoming  the 
victims  of  violent  paroxysms  in  legislation  ;  the  term 
of  six  years  vrould  seem  to  hit  the  just  medium  be- 
tw^een  a  duration  of  office,  which  would  too  much  re- 
sist, and  a  like  duration,  which  would  too  much  invite 
those  changes  of  policy,  foreign  and  domestic,  which 
the  best  interests  of  the  country  may  require  to  be 
deliberately  weighed,  and  gradually  introduced.  If 
the  state  governments  are  found  tranquil,  and  prosper- 
ous, and  safe,  with  a  senate  of  two,  three,  four,  and 
five  years'  duration,  it  would  seem  impossible  for  the 
Union  to  be  in  danger  from  a  term  of  service  of  six 
years. 

^  369.  But,  in  order  to  quiet  the  last  lingering 
scruples  of  jealousy,  the  succeeding  clause  of  the  con- 
stitution has  interposed  an  intermediate  change  in  the 
elements  of  the  body,  which  would  seem  to  make  it 
absolutely  above  exception,  if  reason,  and  not  fear,  is 
to  prevail  ;  and  if  government  is  to  be  a  reality,  and 
not  a  vision. 

§  370.  It  declares,  "  Immediately  after  they  (the 
"  senators)  shall  be  assembled,  in  consequence  of  the 
"  first  election,  they  shall  be  divided,  as  equally  as  may 
"  be,  into  three  classes.  The  seats  of  the  senators  of 
"  the  first  class  shall  be  vacated  at  the  expiration  of 
"  the  second  year  ;  of  the  second  class,  at  the  expira- 
"  tion  of  the  fourth  year  ;  and  of  the  third  class,  at  the 
"  expiration  of  the  sixth  year,  so  that  one  third  may  be 
"  chosen  every  second  year."  A  proposition  was  made 
in  the  convention,  that  the  senators  should  be  chosen 
for  nine  years,  one  third  to  go  out  biennially,  and  was 


264         CONSTITUTION    OF   THE    U.    STATES.      [BOOK  III. 

lost,  three  states  voting  in  the  affirmative,  and  eight  in 
the  negative  ;  and  then  the  present  limitation  was 
adopted  by  a  vote  of  seven  states  against  four.  Here, 
then,  is  a  clause,  which,  without  impairing  the  efficien- 
cy of  the  senate  for  the  discharge  of  its  high  functions, 
gradually  changes  its  members,  and  introduces  a  bien- 
nial appeal  to  the  states,  which  must  for  ever  prohibit 
any  permanent  combination  for  sinister  purposes.  No 
person  would  probably  propose  a  less  duration  of  office 
for  the  senate,  than  double  the  period  of  the  house. 
In  effect,  this  provision  changes  the  composition  of 
two  thirds  of  that  body  within  that  period. 

^371.  As  vacancies  might  occur  in  the  senate  dur- 
ing the  recess  of  the  state  legislature,  it  became  indis- 
pensable to  provide  for  that  exigency.  Accordingly 
the  same  clause  proceeds  to  declare :  "  And  if  vacan- 
"  cies  happen  by  resignation,  or  otherwise,  during  the 
"  recess  of  the  legislature  of  any  state,  the  executive 
"  thereof  may  make  temporary  appointments  until  the 
"  next  meeting  of  the  legislature,  which  shall  then  fill 
"  such  vacancies."  It  does  not  appear,  that  any 
strong  objection  was  urged  in  the  convention  against 
this  proposition,  although  it  was  not  adopted  without 
some  opposition.  There  seem  to  have  been  three 
courses  presented  for  the  consideration  of  the  conven- 
tion ;  either  to  leave  the  vacancies  unfilled,  until  the 
meeting  of  the  state  legislature  ;  or  to  allow  the  state 
legislatures  to  provide  at  their  pleasure  prospectively 
for  the  occurrence  ;  or  to  confide  a  temporary  appoint- 
ment to  some  select  state  functionary  or  body.  The 
latter  was  deemed  the  most  satisfactory  and  conve- 
nient course.  Confidence  might  justly  be  reposed  in 
the  state  executive,  as  representing  at  once  the  inter- 
ests and  wishes  of  the  state,  and  enjoying  all  the  pro- 


CH.  X.]  THE    SENATE.  265 

per  means  of  knowledge  and   responsibility,  to  en- 
sure a  judicious  appointment. 

^  372.  Fifthly  ;  the  qualifications  of  senators.  The 
constitution  declares,  that  "  No  person  shall  be  a  sen- 
"  ator,  who  shall  not  have  attained  the  age  of  thirty 
"  years,  and  been  nine  years  a  citizen  of  the  United 
"  States,  and  who  shall  not,  when  elected,  be  an  in- 
"  habitant  of  that  state,  for  which  he  shall  be  chosen." 
As  the  nature  of  the  duties  of  a  senator  require  more 
experience,  knowledge,  and  stability  of  character,  than 
those  of  a  representative,  the  qualification  in  point  of 
age  is  raised.  A  person  may  be  a  representative  at 
twenty-five  ;  but  he  cannot  be  a  senator  until  thirty. 
A  similar  qualification  of  age  was  required  of  the  mem- 
bers of  the  Roman  senate.  It  would  have  been  a 
somewhat  singular  anomaly  in  the  history  of  free  gov- 
ernments, to  have  found  persons  actually  exercising 
the  highest  functions  of  government,  who,  in  some  en- 
lightened and  polished  countries,  would  not  be  deem- 
ed to  have  arrived  at  an  age  sufficiently  mature  to  be 
entitled  to  all  the  private  and  municipal  privileges  of 
manhood.  In  Rome  persons  were  not  deemed  at  full 
age  until  twenty-five  ;  and  that  continues  to  be  the 
rule  in  France,  and  Holland,  and  other  civil  law  coun- 
tries ;  and  in  France,  by  the  old  law,  in  regard  to 
marriage  full  age  was  not  attained  until  thirty.  It 
has  since  been  varied,  and  the  term  diminished. 

^  373.  The  age  of  senators  was  fixed  in  the  consti- 
tution at  first  by  a  vote  of  seven  states  against  four  ; 
and  finally,  by  an  unanimous  vote.  Perhaps  no  one, 
in  our  day,  is  disposed  to  question  the  propriety  of  this 
limitation  ;  and  it  is,  therefore,  useless  to  discuss  a 
point,  which  is  so  purely  speculative.  If  counsels  are 
to  be  wise,  the  ardour,  and  impetuosity,  and   confi- 

Abr.  34 


266     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

dence  of  youth  must  be  chastised  by  the  sober  lessons 
of  experience  ;  and  if  knowledge,  and  solid  judgment, 
and  tried  integrity,  are  to  be  deemed  indispensable 
qualifications  for  senatorial  service,  it  would  be  rash- 
ness to  affirm,  that  thirty  years  is  too  long  a  period  for 
a  due  maturity  and  probation. 

^  374.  The  next  qualification  is  citizenship.  The 
propriety  of  some  limitation  upon  admissions  to  office, 
after  naturalization,  cannot  well  be  doubted.  The 
senate  is  to  participate  largely  in  transactions  with  for- 
eign governments  ;  and  it  seems  indispensable,  that 
time  should  have  elapsed  sufficient  to  wean  a  senator 
from  all  prejudices,  resentments,  and  partialities,  in 
relation  to  the  land  of  his  nativity,  before  he  should 
be  entrusted  with  such  high  and  delicate  functions. 
Besides  ;  it  can  scarcely  be  presumed,  that  any  for- 
eigner can  have  acquired  a  thorough  knowledge  of  the 
institutions  and  interests  of  a  country,  until  he  has 
been  permanently  incorporated  into  its  society,  and 
has  acquired  by  the  habits  and  intercourse  of  life  the 
feelings  and  the  duties  of  a  citizen.  And  if  he  has 
acquired  the  requisite  knowledge,  he  can  scarcely  feel 
that  devoted  attachment  to  them,  which  constitutes 
the  great  security  for  fidelity  and  promptitude  in  the 
discharge  of  official  duties.  If  eminent  exceptions 
could  be  stated,  they  w^ould  furnish  no  safe  rule  ;  and 
should  rather  teach  us  to  fear  our  being  misled  by 
brilliancy  of  talent,  or  disinterested  patriotism,  into  a 
confidence,  which  might  betray,  or  an  acquiescence, 
which  might  weaken,  that  jealousy  of  foreign  influence, 
which  is  one  of  the  main  supports  of  republics.  In 
the  convention  it  was  at  first  proposed,  that  the  limi- 
tation should  be  four  years  ;  and  it  was  finally  altered 
by  a  vote  of  six  states  against  four,  one  being  divided, 


CH.  X.]  THE  SENATE.  267 

which  was  afterwards  confirmed  by  a  vote  of  eight 
states  to  three.  This  subject  has  been  already  some- 
what considered  in  another  place  ;  and  it  may  be  con- 
cluded, by  adopting  the  language  of  the  Federalist  on 
the  same  clause.  "  The  term  of  nine  years  appears 
to  be  a  prudent  mediocrity  between  a  total  exclusion 
of  adopted  citizens,  whose  merit  and  talents  may  claim 
a  share  in  the  public  confidence,  and  an  indiscriminate 
and  hasty  admission  of  them,  which  might  create  a 
channel  for  foreign  influence  in  the  national  councils." 

^  315.  The  only  other  qualification  is,  that  every  sen- 
ator shall,  when  elected,  be  an  inhabitant  of  the  state, 
for  which  he  is  chosen.  This  scarcely  requires  any 
comment ;  for  it  is  manifestly  proper,  that  a  state 
should  be  represented  by  one,  who,  besides  an  inti- 
mate knowledge  of  all  its  wants  and  wishes,  and  local 
pursuits,  should  have  a  personal  and  immediate  interest 
in  all  measures  touching  its  sovereignty,  its  rights,  or 
its  influence.  The  only  surprise  is,  that  provision  was 
not  made  for  his  ceasing  to  represent  the  state  in  the 
senate,  as  soon  as  he  should  cease  to  be  an  inhabitant. 
There  does  not  seem  to  have  been  any  debate  in  the 
convention  on  the  propriety  of  inserting  the  clause,  as 
it  now  stands. 

^  376.  In  concluding  this  topic,  it  is  proper  to  re- 
mark, that  no  qualification  whatsoever  of  property  is 
established  in  regard  to  senators,  as  none  had  been 
established  in  regard  to  representatives.  Merit,  there- 
fore, and  talent  have  the  freest  access  open  to  them 
into  every  department  of  office  under  the  national  gov- 
ernment. Under  such  circumstances,  if  the  choice  of 
the  people  is  but  directed  by  a  suitable  sobriety  of 
judgment,  the  senate  cannot  fail  of  being  distinguished 
for  wisdom,  for  learning,  for  exalted  patriotism,  for  in- 
corruptible integrity,  and  for  inflexible  independence. 


268     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

§  377.  The  next  clause  of  the  ihh'd  section  of  the 
first  article  respects  the  person,  who  shall  preside  in 
the  senate.  It  declares,  that  "  the  Vice  President  of 
"  the  United  States  shall  be  president  of  the  senate  ; 
**  but  shall  have  no  vote,  unless  thej  be  equally  divid- 
"  ed  ;"  and  the  succeeding  clause,  that  "  the  senate 
"  shall  choose  their  other  officers,  and  also  a  president 
"  pro  tempore,  in  the  absence  of  the  vice  president,  or 
"  when  he  shall  exercise  the  office  of  president  of  the 
"  United  States." 

§  378.  The  original  article,  as  first  reported,  author- 
ized the  senate  to  choose  its  own  president,  and  other 
officers  ;  and  this  was  adopted  in  the  convention.  But 
the  same  draft  authorized  the  president  of  the  senate, 
in  case  of  the  removal,  death,  resignation,  or  disability 
of  the  president,  to  discharge  his  duties.  When  at  a 
late  period  of  the  convention  it  was  deemed  advisable, 
that  there  should  be  a  vice  president,  the  propriety  of 
retaining  him,  as  presiding  officer  of  the  senate,  seems 
to  have  met  with  general  favour,  eight  states  voting 
in  the  affirmative,  and  two  only  in  the  negative. 

^  379.  The  propriety  of  creating  the  office  of  vice 
president  will  be  reserved  for  future  consideration, 
w^hen,  in  the  progress  of  these  commentaries,  the  con- 
stitution of  the  executive  department  comes  under  re- 
view. The  reasons,  why  he  was  authorized  to  preside 
in  the  senate,  belong  appropriately  to  this  place. 

^  380.  There  is  no  novelty  in  the  appointment  of  a 
person  to  preside,  as  speaker,  who  is  not  a  constituent 
member  of  the  body,  over  which  he  is  to  preside.  In 
the  house  of  lords  in  England  the  presiding  officer  is 
the  lord  chancellor,  or  lord  keeper  of  the  great  seal, 
or  other  person  appointed  by  the  king's  commission  ; 
and  if  none  such  be  so  appointed,  then  it  is  said,  that 


CH.  X.]  THE    SENATE.  269 

the  lords  may  elect.  But  it  is  by  no  means  necessary, 
that  the  person  appointed  by  the  king  should  be  a  peer 
of  the  realm,  or  lord  of  parliament.  Nor  has  this  ap- 
pointment by  the  king  ever  been  complained  of,  as  a 
grievance,  nor  has  it  operated  w^ith  inconvenience  or 
oppression  in  practice.  It  is  on  the  contrary  deemed 
an  important  advantage,  both  to  the  officer,  and  to  the 
house  of  peers,  adding  dignity  and  weight  to  the  for- 
mer, and  securing  great  legal  ability  and  talent  in  aid 
of  the  latter.  This  consideration  alone  might  have 
had  some  influence  in  the  convention.  The  vice  pre- 
sident being  himself  chosen  by  the  states,  might  well 
be  deemed,  in  point  of  age,  character,  and  dignity, 
worthy  to  preside  over  the  deliberations  of  the  senate, 
in  which  the  states  were  all  assembled,  and  represented. 
His  impartiality  in  the  discharge  of  its  duties  might 
be  fairly  presumed  ;  and  the  employment  would  not 
only  bring  his  character  in  review  before  the  public  ; 
but  enable  him  to  justify  the  public  confidence,  by 
performing  his  public  functions  with  independence, 
and  firmness,  and  sound  discretion.  A  citizen,  who 
was  deemed  worthy  of  being  one  of  the  competitors 
for  the  presidency,  could  scarcely  fail  of  being  distin- 
guished by  private  virtues,  by  comprehensive  acquire- 
ments, and  by  eminent  services.  Jn  all  questions  be- 
fore the  senate  he  might  safely  be  appealed  to,  as  a  fit 
arbiter  upon  an  equal  division,  in  which  pase  alone  he 
is  entrusted  with  a  vote. 

^381.  But  the  strong  motive  for  this  appointment 
was  of  another  sort,  founded  upon  state  jealousy,  and 
state  equality  in  the  senate.  If  the  speaker  of  the 
senate  w^as  to  be  chosen  from  its  own  members,  the 
state,  upon  whom  the  choice  would  fall,  might  possess 
either  more  or  less,  than  its  due  share  of  influence.     If 


270  CONSTITUTION    OF    THE    U.    STATES.    [bOOK  III. 

the  speaker  were  not  allowed  to  vote,  except  when 
there  was  an  equal  division,  independent  of  his  own 
vote,  then  the  state  might  lose  its  own  voice  ;  if  he 
were  allowed  to  give  his  vote,  and  also  a  casting  vote, 
then  the  state  might,  in  effect,  possess  a  double  vote. 
Either  alternative  would  of  itself  present  a  predicament 
sufficiently  embarrassing.  On  the  other  hand,  if  no 
casting  vote  were  allowed  in  any  case,  then  the  inde- 
cision and  inconvenience  might  be  very  prejudicial  to 
the  public  interests,  in  case  of  an  equality  of  votes. 
It  might  give  rise  to  dangerous  feuds,  or  intrigues, 
and  create  sectional  and  state  agitations.  The  smaller 
states  might  well  suppose,  that  their  interests  were 
less  secure,  and  less  guarded,  than  they  ought  to  be. 
Under  such  circumstances,  the  vice  president  would 
seem  to  be  the  most  fit  arbiter  to  decide,  because  he 
w  ould  be  the  representative,  not  of  one  state  only,  but 
of  all ;  and  must  be  presumed  to  feel  a  lively  interest 
in  promoting  all  measures  for  the  public  good.  This 
reasoning  appears  to  have  been  decisive  in  the  con- 
vention, and  satisfactory  to  the  people.  It  establishes, 
that  there  was  a  manifest  propriety  in  making  the  ar- 
rangement, ( onducive  to  the  harmony  of  the  states, 
and  the  dignity  of  the  general  government.  And  as 
the  senate  possesses  the  power  to  make  rules  for  its 
own  proceedings,  there  is  little  danger,  that  there  can 
ever  arise  auy  abuse  of  the  presiding  power.  The 
danger,  if  any,  is  rather  the  other  way,  that  the  pre- 
siding power  will  be  either  silently  weakened,  or 
openly  surrendered,  so  as  to  leave  the  office  little 
more,  than  the  barren  honour  of  a  place,  without  in- 
fluence and  without  action. 

^  382.  The  propriety  of  entrusting  the  senate  with 
the  choice  of  its  other  officers,  and  also  of  a  president 


CH.  X.]  THE    SENATE.  271 

pro  tempore  in  the  absence  of  the  vice  president,  or 
when  he  exercises  the  office  of  president,  seems  never 
to  have -been  questioned  ;  and  indeed  is  so  obvious, 
that  it  is  wholly  unnecessary  to  vindicate  it.  Confi- 
dence between  the  senate  and  its  officers,  and  the 
power  to  make  a  suitable  choice,  and  to  secure  a 
suitable  responsibility  for  the  faithful  discharge  of  the 
duties  of  office,  are  so  indispensable  for  the  public  good, 
that  the  provision  will  command  universal  assent,  as 
soon  as  it  is  mentioned.  It  has  grown  into  a  general 
practice  for  the  vice  president  to  vacate  the  senatorial 
chair  a  short  time  before  the  termination  of  each  ses- 
sion, in  order  to  enable  the  senate  to  choose  a  presi- 
dent pro  tempore,  who  might  already  be  in  office,  if 
the  vice  president  in  the  recess  should  be  called  to 
the  chair  of  state.  The  practice  is  founded  in  wisdom 
and  sound  policy,  as  it  immediately  provides  for  an 
exigency,  which  may  well  be  expected  to  occur  at  any 
time  ;  and  prevents  the  choice  from  being  influenced 
by  temporary  excitements  or  intrigues,  arising  from 
the  actual  existence  of  a  vacancy.  As  it  is  useful  in 
peace  to  provide  for  war  ;  so  it  is  likewise  useful  in 
times  of  profound  tranquillity  to  provide  for  political 
agitations,  which  may  disturb  the  public  harmony. 

§  383.  The  next  clause  of  the  third  section  of  the 
first  article  respects  the  subject  of  impeachment.  It 
is  as  follows  :  "  The  senate  shall  have  the  sole  power 
''  to  try  all  impeachments.  When  sitting  for  that 
"  purpose,  they  shall  be  on  oath  or  affirmation.  When 
"  the  president  of  the  United  States  is  tried,  the  chief 
"justice  shall  preside.  And  no  person  shall  be  con- 
"  victed  without  the  concurrence  of  two  thirds  of  the 
"  members  present." 

^  384.  The  great  objects,  to  be  attained  in  the  se- 


272  CONSTITUTION    OF    THE    U.    STATES.    [boOK  III. 

lection  of  a  tribunal  for  the  trial  of  impeachments,  are, 
impartiality,  integrity,  intelligence,  and  independence. 
If  either  of  these  is  wanting,  the  trial  must  be  radically 
imperfect.  To  ensure  impartiality,  the  body  must  be 
in  some  degree  removed  from  popular  power  and  pas- 
sions, from  the  influence  of  sectional  prejudice,  and 
from  the  more  dangerous  influence  of  mere  party  spirit. 
To  secure  integrity,  there  must  be  a  lofty  sense  of 
duty,  and  a  deep  responsibility  to  future  times,  as  well 
as  to  God.  To  secure  intelligence,  there  must  be 
age,  experience,  and  high  intellectual  powers,  as  well 
as  attainments.  To  secure  independence,  there  must 
be  numbers,  as  well  as  talents,  and  a  confidence  re- 
sulting at  once  from  permanency  of  place,  and  dignity 
of  station,  and  enlightened  patriotism.  Does  the 
senate  combine,  in  a  suitable  degree,  all  these  qualifi- 
cations ?  Does  it  combine  them  more  perfectly,  than 
any  other  tribunal,  which  could  be  constituted  ?  What 
other  tribunal  could  be  entrusted  with  the  authority  ? 
These  are  questions  of  the  highest  importance,  and  of 
the  most  frequent  occurrence.  They  arose  in  the 
convention,  and  underwent  a  full  discussion  there. 
They  were  again  deliberately  debated  in  the  state 
conventions  ;  and  they  have  been  at  various  times 
since  agitated  by  jurists  and  statesmen,  and  political 
bodies.  Few  parts  of  the  constitution  have  been  as- 
sailed with  more  vigour ;  and  few  have  been  defended 
with  more  ability. 

^  385.  The  subject  is  itself  full  of  intrinsic  difficulty 
in  a  government  purely  elective.  The  jurisdiction  is 
to  be  exercised  over  offences,  which  are  committed  by 
public  men  in  violation  of  their  public  trust  and  duties. 
Those  duties  are,  in  many  cases,  political ;  and,  indeed, 
in  other  cases,  to  which  the  power  of  impeachment  will 


CH.  X.]  THE    SENATE.  273 

probably  be  applied,  they  will  respect  functionaries  of 
a  high  character,  where  the  remedy  would  otherwise 
be  wholly  inadequate,  and  the  grievance  be  incapable 
of  redress.  Strictly  speaking,  then,  the  power  partakes 
of  a  political  character,  as  it  respects  injuries  to  the 
society  in  its  political  character  ;  and,  on  this  account, 
it  requires  to  be  guarded  in  its  exercise  against  the 
spirit  of  faction,  the  intolerance  of  party,  and  the  sud- 
den movements  of  popular  feeling.  The  prosecution 
will  seldom  fail  to  agitate  the  passions  of  the  whole 
community,  and  to  divide  it  into  parties,  more  or  less 
friendly,  or  hostile  to  the  accused.  The  press,  with 
its  unsparing  vigilance,  will  arrange  itself  on  either 
side,  to  control,  and  influence  public  opinion  ;  and 
there  will  always  be  some  danger,  that  the  decision 
will  be  regulated  more  by  the  comparative  strength  of 
parties,  than  by  the  real  proofs  of  innocence  or  guilt. 

§  386.  On  the  other  hand,  the  delicacy  and  magni- 
tude of  a  trust,  which  so  deeply  concerns  the  political 
existence  and  reputation  of  every  man  engaged  in  the 
administration  of  public  aflairs,  cannot  be  overlooked. 
It  ought  not  to  be  a  power  so  operative  and  instant, 
that  it  may  intimidate  a  modest  and  conscientious 
statesman,  or  other  functionary  from  accepting  oftice ; 
nor  so  weak  and  torpid,  as  to  be  capable  of  lulling  of- 
fenders into  a  general  security  and  indifference.  The 
difficulty  of  placing  it  rightly  in  a  government,  resting 
entirely  on  the  basis  of  periodical  elections,  will  be 
more  strikingly  perceived,  when  it  is  considered,  that 
the  ambitious  and  the  cunning  will  often  make  strong 
accusations  against  public  men  the  means  of  their  own 
elevation  to  office  ;  and  thus  give  an  impulse  to  the 
power  of  impeachment,  by  pre-occupying  the  public 
opinion.     The  convention  appears  to  have  been  very 

Abr.  35 


274  CONSTITUTION    OF    THE    U.    STATES.      [bOOK  III.  J 

Strongly  impressed  with  the  difficulty  of  constituting  a 
suitable  tribunal ;  and  finally  came  to  the  result,  that 
the  senate  was  the  most  fit  depositary  of  this  exalted 
trust.  In  so  doing,  they  had  the  example  before  them 
of  several  of  the  best  considered  state  constitutions  ; 
and  the  example,  in  some  measure,  of  Great  Britain,  j 
The  most  strenuous  opponent  cannot,  therefore,  allege,  ' 
that  it  is  a  rash  and  novel  experiment ;  the  most 
unequivocal  friend  must,  at  the  same  time,  admit,  that 
it  is  not  free  from  all  plausible  objections. 

§  387.  The  conclusion,  to  which,  upon  a  large  sur- 
vey of  the  whole  subject,  our  judgments  are  naturally 
led,  is,  that  the  power  has  been  wisely  deposited  with 
the  senate.  In  the  language  of  a  learned  commentator, 
it  may  be  said,  that  of  all  the  departments  of  the  gov- 
ernment, "  none  will  be  found  more  suitable  to  exercise 
this  peculiar  jurisdiction,  than  the  senate.  Although, 
like  their  accusers,  they  are  representatives  of  the  peo- 
ple ;  yet  they  are  so  by  a  degree  more  removed,  and  hold 
their  stations  for  a  longer  term.  They  are,  therefore, 
more  independent  of  the  people,  and  being  chosen  with 
the  knowledge,  that  they  may,  while  in  office,  be  called 
upon  to  exercise  this  high  function,  they  bring  with 
them  the  confidence  of  their  constituents,  that  they 
will  faithfully  execute  it,  and  the  implied  compact  on 
their  own  part,  that  it  shall  be  honestly  discharged. 
Precluded  from  ever  becoming  accusers  themselves,  it 
is  their  duty  not  to  lend  themselves  to  ihe  animosities 
of  party,  or  the  prejudices  against  individuals,  which 
may  sometimes  unconsciously  induce  the  house  of  rep- 
resentatives to  the  acts  of  accusation.  Habituated  to 
comprehensive  views  of  the  great  political  relations  of 
the  country,  they  are  naturally  the  best  qualified  to  de- 
cide on  those  charges,  which  may  have  any  connexion 


CH. 


X.]  THE    SENATE.  275 


with  transactions  abroad,  or  great  political  interests  at 
home.  And  although  we  cannot  say,  that,  like  the 
English  house  of  lords,  they  form  a  distinct  body, 
wholly  uninfluenced  by  the  passions,  and  remote  from 
the  interests,  of  the  people  ;  yet  we  can  discover  in 
no  other  division  of  the  government  a  greater  proba- 
bility of  impartiality  and  independence." 

^  388.  The  remaining  parts  of  the  clause  of  the 
constitution  now  under  consideration  will  not  require 
an  elaborate  commentary.  The  first  is,  that  the  senate, 
when  sitting  as  a  court  of  impeachment,  "  shall  be  on 
oath  or  affirmation  ;"  a  provision,  which,  as  it  appeals 
to  the  conscience  and  integrity  of  the  members  by  the 
same  sanction,  which  applies  to  judges  and  jurors,  who 
sit  in  other  trials,  will  commend  itself  to  all  persons, 
who  deem  the  highest  trusts,  rights,  and  duties,  worthy 
of  the  same  protection  and  security,  at  least,  as  those 
of  the  humblest  order.  It  would,  indeed,  be  a  mon- 
strous anomaly,  that  the  highest  officers  might  be  con- 
victed of  the  worst  crimes,  without  any  sanction  being 
interposed  against  the  exercise  of  the  most  vindictive 
passions  ;  while  the  humblest  individual  has  a  right 
to  demand  an  oath  of  fidelity  from  those,  who  are  his 
peers,  and  his  triors.  In  England,  however,  upon  the 
trial  of  impeachments,  the  house  of  lords  are  not  under 
oath  ;  but  only  make  a  declaration  upon  their  honour. 
This  is  a  strange  anomaly,  as  in  all  civil  and  criminal 
trials  by  a  jury,  the  jurors  are  under  oath  ;  and  there 
seems  no  reason,  why  a  sanction  equally  obligatory 
upon  the  consciences  of  the  triors  should  not  exist  in 
trials  for  capital  or  other  offences  before  every  other 
tribunal.  What  is  there  in  the  honour  of  a  peer, 
which  necessarily  raises  it  above  the  honour  of  a  com- 
v^oner  ?     The  anomaly  is  rendered  still  more  glaring 


276     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

by  the  fact,  that  a  peer  cannot  give  testimony,  as  a 
witness,  except  on  oath  ;  for,  here,  his  honour  is  not 
trusted.  The  maxim  of  the  law,  in  such  a  case,  is  in 
judicio  non  creditur,  nisi  juraiis.  Why  should  the 
obligation  of  a  judge  be  less  solemn,  than  the  obliga- 
tion of  a  witness  ?  The  truth  is,  that  it  is  a  privilege 
of  power,  conceded  in  barbarous  times,  and  founded 
on  feudal  sovereignty,  more  than  on  justice,  or  princi- 
ple. 

^  389.  The  next  provision  is  :  "When  the  president 
"  of  the  United  States  is  tried,  the  chief  justice  shall 
"  preside."  The  reason  of  this  clause  has  been  already 
adverted  to.  It  is  to  preclude  the  vice  president, 
who  might  be  supposed  to  have  a  natural  desire  to 
succeed  to  the  office,  from  being  instrumental  in  pro- 
curing the  conviction  of  the  chief  magistrate.  Under 
such  circumstances,  who  could  be  deemed  more  suita- 
ble to  preside,  than  the  highest  judicial  magistrate  of 
the  Union.  His  impartiality  and  independence  could 
be  as  little  suspected,  as  those  of  any  person  in  the 
country.  And  the  dignity  of  his  station  might  well 
be  deemed  an  adequate  pledge  for  the  possession  of 
the  highest  accomplishments. 

^  390.  It  is  added,  "  And  no  person  shall  be  con- 
"  victed  without  the  concurrence  of  two  thirds  of  the 
"  members  present."  Although  very  numerous  objec- 
tions were  taken  to  the  constitution,  none  seems  to 
have  presented  itself  against  this  particular  quorum 
required  for  a  conviction  ;  and  yet  it  might  have  been 
fairly  thought  to  be  open  to  attack  on  various  sides 
from  its  supposed  theoretical  inconvenience  and  incon- 
gruity. It  might  have  been  said  with  some  plausi- 
bility, that  it  deserted  the  general  principles  even  of 
courts  of  justice,  where  a  mere  majority  make  the  de- 


CH.  X.]  THE    SENATE.  277 

cision  ;  and,  of  all  legislative  bodies,  where  a  similar 
rule  is  adopted  ;  and,  that  the  requisition  of  two  thirds 
would  reduce  the  power  of  impeachment  to  a  mere 
nullity.  Besides  ;  upon  the  trial  of  impeachments  in 
the  house  of  lords  the  conviction  or  acquittal  is  by  a 
mere  majority  ;  so  that  there  is  a  failure  of  atiy  analogy 
to  support  the  precedent. 

^  391.  It  does  not  appear  from  any  authentic  me- 
morials, what  were  the  precise  grounds,  upon  which 
this  limitation  was  interposed.  But  it  may  well  be 
conjectured,  that  the  real  grounds  were,  to  secure  an 
impartial  trial,  and  to  guard  public  men  from  being 
sacrificed  to  the  immediate  impulses  of  popular  resent- 
ment or  party  predominance.  In  England,  the  house 
of  lords,  from  its  very  structure  and  hereditary  inde- 
pendence, furnishes  a  sufficient  barrier  against  such 
oppression  and  injustice.  Mr.  Justice  Blackstone  has 
remarked,  with  manifest  satisfaction,  that  the  nobility 
*'  have  neither  the  same  interests,  nor  the  same  pas- 
sions, as  popular  assemblies  ;"  and,  that  "  it  is  proper, 
that  the  nobility  should  judge,  to  insure  justice  to  the 
accused  ;  as  it  is  proper,  that  the  people  should  accuse, 
to  insure  justice  to  the  commonwealth."  Our  senate 
is,  from  the  very  theory  of  the  constitution,  founded 
upon  a  more  popular  basis  ;  and  it  was  desirable  to 
prevent  any  combination  of  a  mere  majority  of  the 
states  to  displace,  or  to  destroy  a  meritorious  public 
officer.  If  a  mere  majority  were  sufficient  to  convict, 
there  would  be  danger,  in  times  of  high  popular  com- 
motion or  party  spirit,  that  the  influence  of  the  house 
of  representatives  would  be  found  irresistible.  The 
only  practicable  check  seemed  to  be,  the  introduction 
of  the  clause  of  two  thirds,  which  would  thus  require 
a  union  of  opinion  and  interest,  rare,  except  in  cases, 


1 


278     CONSTITUTION  OF  THE  U.  STATES.  [BOOK  III. 

where  guilt  was  manifest,  and  innocence  scarcely  pre- 
sumable. Nor  could  the  limitation  be  justly  com- 
plained of;  for,  in  common  cases,  the  law  not  only 
presumes  every  man  innocent,  until  he  is  proved 
guilty ;  but  unanimity  in  the  verdict  of  the  jury  is  in- 
dispensable. Here,  an  intermediate  scale  is  adopted 
between  unanimity,  and  a  mere  majority.  And  if  the 
guilt  of  a  public  officer  cannot  be  established  to  the 
satisfaction  of  two  thirds  of  a  body  of  high  talents  and 
acquirements,  which  sympathizes  with  the  people,  and 
represents  the  states,  after  a  full  investigation  of  the 
facts,  it  must  be,  that  the  evidence  is  too  infirm,  and 
too  loose  to  justify  a  conviction.  Under  such  circum- 
stances, it  would  be  far  more  consonant  to  the  notions 
of  justice  in  a  republic,  that  a  guilty  person  should 
escape,  than  that  an  innocent  person  should  become 
the  victim  of  injustice  from  popular  odium,  or  party 
combinations. 

^  392.  The  next  clause  is,  that  "  Judgment  in  cases 
"  of  impeachment  shall  not  extend  further,  than  to  re- 
"  moval  from  office,  and  disqualification  to  hold  and 
"  enjoy  any  office  of  honour,  trust,  or  profit,  under  the 
"  United  States.  But  the  party  convicted  shall  never- 
"  theless  be  liable  and  subject  to  indictment,  trial, 
"judgment,  and  punishment,  according  to  law." 

^  393.  It  is  obvious,  that,  upon  trials  on  impeach- 
ments, one  of  two  courses  must  be  adopted  in  case  of 
a  conviction  ;  either  for  the  court  to  proceed  to  pro- 
nounce a  full  and  complete  sentence  of  punishment 
for  the  offence  according  to  the  law  of  the  land  in  like 
cases,  pending  in  the  common  tribunals  of  justice,  su- 
peradding the  removal  from  office,  and  the  consequent 
disabilities  ;  or,  to  confine  its  sentence  to  the  removal 
from  office  and  other  disabilities.     If  the  former  duty 


CH.  X.]  THE    SENATE.  279 

be  a  part  of  the  constitutional  functions  of  the  court, 
then,  in  case  of  an  acquittal,  there  cannot  be  another 
trial  of  the  party  for  the  same  offence  in  the  common 
tribunals  of  justice,  because  it  is  repugnant  to  the  whole 
theory  of  the  common  law,  that  a  man  should  be 
brought  into  jeopardy  of  life  or  limb  more  than  once 
for  the  same  offence.  A  plea  of  acquittal  is,  therefore, 
an  absolute  bar  against  any  second  prosecution  for  the 
same  offence.  If  the  court  of  impeachments  is  merely 
to  pronounce  a  sentence  of  removal  from  office  and 
the  other  disabilities  ;  then  it  is  indispensable,  that 
provision  should  be  made,  that  the  common  tribunals  of 
justice  should  be  at  liberty  to  entertain  jurisdiction  of 
the  offence,  for  the  purpose  of  inflicting  the  common 
punishment  applicable  to  unofficial  offenders.  Other- 
wise, it  might  be  matter  of  extreme  doubt,  whether, 
consistently  with  the  great  maxim  above  mentioned, 
established  for  the  security  of  the  life  and  limbs  and 
liberty  of  the  citizen,  a  second  trial  for  the  same  of- 
fence could  be  had,  either  after  an  acquittal,  or  a  con- 
viction in  the  court  of  impeachments.  And  if  no  such 
second  trial  could  be  had,  then  the  grossest  official 
offenders  might  escape  without  any  substantial  punish- 
ment, even  for  crimes,  which  would  subject  their  fellow 
citizens  to  capital  punishment. 

^  394.  The  constitution,  then,  having  provided,  that 
judgment  upon  impeachments  shall  not  extend  further, 
than  to  removal  from  office,  and  disqualification  to  hold 
office,  (which,  however  afflictive  to  an  ambitious  and 
elevated  mind,  would  be  scarcely  felt,  as  a  punishment, 
by  the  profligate  and  the  base,)  has  wisely  subjected 
the  party  to  trial  in  the  common  criminal  tribunals, 
for  the  purpose  of  receiving  such  punishment,  as  ordi- 
narily belongs   to  the  offence.      Thus,  for  instance. 


280     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

treason,  which  by  our  laws  is  a  capital  offence,  may 
receive  its  appropriate  punishment ;  and  bribery  in  high 
officers,  which  otherwise  would  be  a  mere  disqualifica- 
tion from  office,  may  have  the  measure  of  its  infamy 
dealt  out  to  it  with  the  same  unsparing  severity,  which 
attends  upon  other  and  humbler  offenders. 

^  395.  In  England,  the  judgment  upon  impeach- 
ments is  not  confined  to  mere  removal  from  office  ;  but 
extends  to  the  whole  punishment  attached  by  law  to 
the  offence.  The  house  of  lords,  therefore,  upon  a 
conviction,  may,  by  its  sentence,  inflict  capital  punish- 
ment ;  or  perpetual  banishment ;  or  forfeiture  of  goods 
and  lands  ;  or  fine  and  ransom  ;  or  imprisonment ;  as 
well  as  removal  from  office,  and  incapacity  to  hold 
office,  according  to  the  nature  and  aggravation  of  the 
offence. 

^  396.  As  the  offences,  to  which  the  remedy  of  im- 
peachment has  been,  and  will  continue  to  be  principally 
applied,  are  of  a  political  nature,  it  is  natural  to  sup- 
pose, that  they  will  be  often  exaggerated  by  party 
spirit,  and  the  prosecutions  be  sometimes  dictated  by 
party  resentments,  as  well  as  by  a  sense  of  the  pub- 
lic good.  There  is  danger,  therefore,  that  in  cases 
of  conviction  the  punishment  may  be  wholly  out  of 
proportion  to  the  offence,  and  pressed  as  much  by 
popular  odium,  as  by  aggravated  crime.  From  the 
nature  of  such  offences,  it  is  impossible  to  fix  any  exact 
grade,  or  measure,  either  in  the  offences,  or  the  punish- 
ments ;  and  a  very  large  discretion  must  unavoidably 
be  vested  in  the  court  of  impeachments,  as  to  both. 
Any  attempt  to  define  the  offences,  or  to  affix  to  every 
grade  of  distinction  its  appropriate  measure  of  punish- 
ment, would  probably  tend  to  more  injustice  and  incon- 
venience, than  it  would  correct ;  and  perhaps  would 


CH.  Xr.]  THK  SENATE.  281 

render  the  power  at  once  inefficient  and  unwieldly. 
The  discretion,  then,  if  confided  at  all,  being  peculiarly 
subject  to  abuse,  and  connecting  itself  with  state  par- 
ties; and  state  contentions,  and  state  animosities,  it  was 
deemed  most  advisable  by  the  convention,  that  the 
power  of  the  senate  to  inflict  punishment  should  merely 
reach  the  right  and  qualifications  to  office ;  and  thus 
take  away  the  temptation  in  factious  times  to  sacrifice 
good  and  great  men  upon  the  altar  of  party.  History 
had  sufficiently  admonished  them,  that  the  power  of 
impeachment  had  been  thus  mischievously  and  inor- 
dinately applied  in  other  ages ;  and  it  was  not  safe  to 
disregard  those  lessons,  which  it  had  left  for  our  in- 
struction, written  not  unfrequently  in  blood.  Lord 
Strafford,  in  the  reign  of  Charles  the  First,  and  Lord 
Stafford,  in  the  reign  of  Charles  the  Second,  were  both 
convicted,  and  punished  capitally  by  the  house  of  Lords ; 
and  both  have  been  supposed  to  have  been  rather  vic- 
tims to  the  spirit  of  the  times,  than  offenders  meriting 
such  high  punishments.  And  other  cases  have  occur- 
red, in  which,  whatever  may  have  been  the  demerits  of 
the  accused,  his  final  overthrow  has  been  the  result  of 
political  resentments  and  hatreds,  far  more  than  of  any 
desire  to  promote  public  justice. 

^  397.  There  is  wisdom,  and  sound  policy,  and  in- 
trinsic justice  in  this  separation  of  the  offence,  at  least 
so  far  as  the  jurisdiction  and  trial  are  concerned,  into 
its  proper  elements,  bringing  the  political  part  under 
the  power  of  the  political  department  of  the  govern- 
ment, and  retaining  the  civil  part  for  presentment  and 
trial  in  the  ordinary  forum.  A  jury  might  well  be 
entrusted  with  the  latter;  while  the  former  should  meet 
its  appropriate  trial  and  punishment  before  the  senate. 
If  it  should  be  asked,  why  separate  trials  should  thus 

Abr.  36 


282      cojfSTiTUTioir  or  the  u.  states,     [book  hi. 

be  successively  had ;  and  why,  if  a  conviction  should 
take  place  in  a  court  of  law,  that  court  might  not  be  en- 
trusted with  the  power  to  pronounce  a  removal  from 
office,  and  the  disquahfication  to  office,  as  a  part  of  its 
sentence,  the  answer  has  been  already  given  in  the 
reasoning  against  vesting  any  court  of  law  with  merely 
political  functions.  In  the  ordinary  course  of  the  ad- 
ministration of  criminal  justice,  no  court  is  authorized 
to  remove,  or  disqualify  an  offender,  as  a  part  of  its 
regular  judgment.  If  it  results  at  all,  it  results  as  a 
consequence,  and  not  as  a  part  of  the  sentence.  But 
it  may  be  properly  urged,  that  the  vesting  of  such  «a 
high  and  delicate  power,  to  be  exercised  by  a  court  of 
law  at  its  discretion,  would,  in  relation  to  the  distin- 
guished functionaries  of  the  government,  be  peculiarly 
unfit  and  inexpedient.  What  could  be  more  embar- 
rassing, than  for  a  court  of  law  to  pronounce  for  a  re- 
moval upon  the  mere  ground  of  political  usurpation,  or 
malversation  in  office,  admitting  of  endless  varieties, 
from  the  slightest  guilt  up  to  the  most  flagrant  corrup- 
tion 7  Ought  a  president  to  be  removed  from  office  at 
the  mere  will  of  a  court  for  political  misdemeanours  7 
Is  not  a  political  body,  like  the  senate,  from  its  superior 
information  in  regard  to  executive  functions,  far  better 
qualified  to  judge,  how  far  the  public  weal  might  be 
promoted  by  such  a  punishment  in  a  given  case,  than  a 
mere  juridical  tribunal?  Suppose  the  senate  should 
still  deem  the  judgment  irregular,  or  unjustifiable,  how 
is  the  removal  to  take  effect,  and  how  is  it  to  be  en- 
forced ?  A  separation  of  the  removing  power  alto- 
gether from  the  appointing  power  might  create  many 
practical  difficulties,  which  ought  not,  except  upon  the 
most  urgent  reasons,  to  be  introduced  into  matters  of 
government.     Without  attempting  to  maintain,  that  the 


CH.  XI.]  THE  SENATE.  283 

difficulties  would  be  insuperable,  it  is  sufficient  to  show, 
that  they  might  be  highly  inconvenient  in  practice. 

§  398.  In  order  to  complete  our  review  of  the  con- 
stitutional provisions  on  the  subject  of  impeachments, 
it  is  necessary  to  ascertain,  who  are  the  persons  liable 
to  be  impeached  ;  and  what  are  impeachable  offences. 
By  some  strange  inadvertence,  this  part  of  the  consti- 
tution has  been  taken  from  its  natural  connexion,  and 
with  no  great  propriety  arranged  under  that  head,  which 
embraces  the  organization,  and  rights,  and  duties  of  the 
executive  department.  To  prevent  the  necessity  of 
again  recurring  to  this  subject,  the  general  method  pre- 
scribed in  these  commentaries  will,  in  this  instance,  be 
departed  from,  and  the  only  remaining  provision  on 
impeachments  be  here  introduced. 

§  399.  The  fourth  section  of  the  second  article  is  as 
follows :  "  The  president,  vice-president,  and  all  civil 
"  officers  of  the  United  States,  shall  be  removed  from 
"  office  on  impeachment  for,  and  conviction  of,  treason, 
'^bribery,  or  other  high  crimes  and  misdemeanours." 

§  400.  From  this  clause  it  appears,  that  the  remedy 
by  impeachment  is  strictly  confined  to  civil  officers  of 
the  United  States,  including  the  president  and  vice- 
president.  In  this  respect,  it  differs  materially  from  the 
law  and  practice  of  Great-Britain.  In  that  kingdom, 
all  the  king's  subjects,  whether  peers  or  commoners, 
are  impeachable  in  parUament ;  though  it  is  asserted, 
that  commoners  cannot  now  be  impeached  for  capital 
offences,  but  for  misdemeanors  only.  Such  kinds  of 
misdeeds,  however,  as  peculiarly  injure  the  common- 
wealth by  the  abuse  of  high  offices  of  trust,  are  the  most 
proper,  and  have  been  the  most  usual  ground  for  this 
kind  of  prosecution  in  pariiament.  There  seems  a  pe- 
culiar propriety,  in  a  repubUcan  government  at  least,  in 


284    CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

confining  the  impeaching  power  to  persons  holding 
office.  In  such  a  government  all  the  citizens  are  equal, 
and  ought  to  have  the  same  security  of  a  trial  by  jury, 
for  all  crimes  and  offences  laid  to  their  charge,  when  not 
holding  any  official  character.  To  subject  them  to  im- 
peachment would  not  only  be  extremely  oppressive  and 
expensive,  but  would  endanger  their  lives  and  liberties, 
by  exposing  them  against  their  wills  to  persecution  for 
their  conduct  in  exercising  their  political  rights  and  privi- 
leges. Dear  as  the  trial  by  jury  justly  is  in  civil  cases, 
its  value,  as  a  protection  against  the  resentment  and 
violence  of  rulers  and  factions,  in  criminal  prosecutions 
makes  it  inestimable.  It  is  there,  and  there  only,  that 
a  citizen,  in  the  sympathy,  the  impartiality,  the  intelli- 
gence, and  incorruptible  integrity  of  his  fellows,  empan- 
nelled  to  try  the  accusation,  may  indulge  a  well-founded 
confidence  to  sustain  and  cheer  him.  If  he  should  choose 
to  accept  office,  he  would  voluntarily  incur  all  the  addi- 
tional responsibility  growing  out  of  it.  If  impeached 
for  his  conduct,  while  in  office,  he  could  not  justly  com- 
plain, since  he  was  placed  in  that  predicament  by  his 
own  choice  ;  and  in  accepting  office  he  submitted  to  all 
the  consequences.  Indeed,  the  moment  it  was  decid- 
ed, that  the  judgment  upon  impeachments  should  be 
limited  to  removal  and  disqualification  from  office,  it 
followed  as  a  natural  result,  that  it  ought  not  to  reach 
any  but  officers  of  the  United  States.  It  seems 
to  have  been  the  original  object  of  the  friends  of  the 
national  government  to  confine  it  to  these  limits  ;  for  in 
the  original  resolutions  proposed  to  the  convention,  and 
in  all  the  subsequent  proceedings,  the  power  was  ex- 
pressly limited  to  national  officers. 

§  401.  Who  are  "civil  officers,"  within  the  meaning- 
of  this  constitutional  provision,  is  an  inquiry,  which  natu- 


CH.  XI.]  THE  JSENATE.  285 

rally  presents  itself;  and  the  answer  cannot,  perhaps, 
be  deemed  settled  by  any  solemn  adjudication.  The 
term  "civil"  has  various  significations.  It  is  some- 
times used  in  contradistinction  to  barbarous,  or  savage, 
to  indicate  a  state  of  society  reduced  to  order  and  reg- 
ular government.  Thus,  we  speak  of  civil  life,  civil 
society,  civil  government,  and  civil  liberty ;  in  which  it 
is  nearly  equivalent  in  meaning  to  political.  It  is  some- 
times used  in  contradistinction  to  criminal,  to  indicate 
the  private  rights  and  remedies  of  men,  as  members  of 
the  community,  in  contrast  to  those,  which  are  public, 
and  relate  to  the  government.  Thus,  we  speak  of 
civil  process  and  criminal  process,  civil  jurisdiction  and 
criminal  jurisdiction.  It  is  sometimes  used  in  contra- 
distinction to  military  or  ecclesiastical,  to  natural  or 
foreign.  Thus,  we  speak  of  a  civil  station,  as  opposed 
to  a  military  or  ecclesiastical  station ;  a  civil  death,  as 
opposed  to  a  natural  death ;  a  civil  war,  as  opposed  to  a 
foreign  war.  The  sense,  in  which  the  term  is  used  in 
the  constitution,  seems  to  be  in  contradistinction  to  mili- 
tary,  to  indicate  the  rights  and  duties  relating  to  citi- 
zens generally,  in  contradistinction  to  those  of  persons 
engaged  in  the  land  or  naval  service  of  the  govern- 
ment. It  is  in  this  sense,  that  Blackstone  speaks  of 
the  laity  in  England,  as  divided  into  three  distinct 
states ;  the  civil,  the  military,  and  the  maritime ;  the 
two  latter  embracing  the  land  and  naval  forces  of  the 
government.  And  in  the  same  sense  the  expenses  of 
the  civil  list  of  officers  are  spoken  of,  in  contradistinc- 
tion to  those  of  the  army  and  navy. 

^  402.  All  officers  of  the  United  States,  therefore, 
who  hold  their  appointments  under  the  national  govern- 
ment, whether  their  duties  are  executive  or  judicial,  in 
the  highest  or  in  the  lowest  departments  of  the  gov- 


286     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

ernment,  with  the  exception  of  officers  in  the  army 
and  navy,  are  properly  civil  officers  within  the  meaning 
of  the  constitution,  and  liable  to  impeachment.  The 
reason  for  excepting  mihtary  and  naval  officers  is,  that 
they  are  subject  to  trial  and  punishment  according  to 
a  peculiar  military  code,  the  laws,  rules,  and  usages  of 
war.  The  very  nature  and  efficiency  of  military  duties 
and  discipline  require  this  summary  and  exclusive  ju- 
risdiction ;  and  the  promptitude  of  its  operations  are 
not  only  better  suited  to  the  notions  of  military  men ; 
but  they  deem  their  honor  and  their  reputation  more 
safe  in  the  hands  of  their  brother  officers,  than  in  any 
merely  civil  tribunals.  Indeed,  in  mihtary  and  naval 
affairs  it  is  quite  clear,  that  the  senate  could  scarcely 
possess  competent  knowledge  or  experience  to  decide 
upon  the  acts  of  military  men  ;  so  much  are  these  acts 
to  be  governed  by  mere  usage,  and  custom,  by  military 
discipline,  and  military  discretion,  that  the  constitution 
has  wisely  committed  the  whole  trust  to  the  decision 
of  courts-martial. 

^  403.  The  next  inquiry  is,  what  are  impeachable 
offences  1  They  are  "  treason,  bribery,  or  other  high 
crimes  and  misdemeanours."  For  the  definition  of 
treason,  resort  may  be  had  to  the  constitution  itself;  but 
for  the  definition  of  bribery,  resort  is  naturally  and  ne- 
cessarily had  to  the  common  law ;  for  that,  as  the  com- 
mon basis  of  our  jurisprudence,  can  alone  furnish  the 
proper  exposition  of  the  nature  and  Hmits  of  this  offence. 
The  only  practical  question  is,  what  are  to  be  deemed 
high  crimes  and  misdemeanours  ?  Now,  neither  the 
constitution,  nor  any  statute  of  the  United  States,  has  in 
any  manner  defined  any  crimes,  except  treason  and 
bribery,  to  be  high  crimes  and  misdemeanours,  and  as 
such  impeachable.    In  what  manner,  then,  are  they  to 


CH.  XI.]  THE  SENATE.  287 

be  ascertained  ?     Is  the  silence  of  the  statute  book  to 
be  deemed  conclusive  in  favour  of  the  party,  until  con- 
gress have  made  a  legislative  declaration  and  enumera- 
tion of  the  offences,  which  shall  be  deemed  high  crimes 
and  misdemeanors  1     If  so,  then,  as  has  been  truly  re- 
marked, the  power  of  impeachment,  except  as  to  the 
two  expressed  cases,  is  a  complete  nullity ;  and  the 
party  is  wholly  dispunishable,  however  enormous  may 
be  his  corruption  or  criminality.     It  will  not  be  sufficient 
to  say,  that  in  the  cases,  where  any  offence  is  punished 
by  any  statute  of  the  United  States,  it  may,  and  ought 
to  be,  deemed  an  impeachable  offence.     It  is  not  every 
offence,  that  by  the  constitution  is  so  impeachable.     It 
must  not  only  be  an  offence,  but  a  high  crime  and  mis- 
demeanour.    Besides;  there  are  many  most  flagrant 
offences,  which,  by  the  statutes  of  the  United  States, 
are  punishable  only,  when  committed  in  special  places, 
and  within  peculiar  jurisdictions,  as,  for  instance,  on  the 
high  seas,  or  in  forts,  navy-yards,  and  arsenals,  ceded  to 
the  United  States.     Suppose  the  offence  is  committed 
in  some  other,  than  these  privileged  places,  or  under 
circumstances  not  reached  by  any  statute  of  the  United 
States,  would  it  be  impeachable  ? 

§  404.  Again,  there  are  many  offences,  purely  polit- 
ical, which  have  been  held  to  be  within  the  reach  of 
parhamentary  impeachments,  not  one  of  which  is  in  the 
slightest  manner  alluded  to  in  our  statute  book.  And,, 
indeed,  political  offences  are  of  so  various  and  complex 
a  character,  so  utterly  incapable  of  being  defined,, 
or  classified,  that  the  task  of  positive  legislation  would 
be  impracticable,  if  it  were  not  almost  absurd  to  attempt 
it.  What,  for  instance,  could  positive  legislation  do  in 
cases  of  impeachment,  like  the  charges  against  Warren 
Hastings,  in  1788?     Resort,  then,  must  be  had  either 


288 


CONSTITUTION  OF  THE  U.  STATES.        [bOOK  III. 


to  parliamentary  practice,  and  the  common  law,  in 
order  to  ascertain,  what  are  high  crimes  and  misdemean- 
ours ;  or  the  whole  subject  must  be  left  to  the  arbitrary 
discretion  of  the  senate,  for  the  time  being.  The  latter 
is  so  incompatible  with  the  genius  of  our  institutions, 
that  no  lawyer  or  statesman  would  be  inclined  to  coun- 
tenance so  absolute  a  despotism  of  opinion  and  practice, 
which  might  make  that  a  crime  at  one  time,  or  in  one 
person,  which  would  be  deemed  innocent  at  another 
time,  or  in  another  person.  The  only  safe  guide  in 
such  cases  must  be  the  common  law,  which  is  the 
guardian  at  once  of  private  rights  and  public  liberties. 

§  405.  Congress  have  unhesitatingly  adopted  the 
conclusion,  that  no  previous  statute  is  necessary  to 
authorize  an  impeachment  for  any  official  misconduct ; 
and  the  rules  of  proceeding,  and  the  rules  of  evidence, 
as  well  as  the  principles  of  decision,  have  been  uni- 
formly regulated  by  the  known  doctrines  of  the  com- 
mon law  and  parliamentary  usage.  In  the  few  cases  of 
impeachment,  which  have  hitherto  been  tried,  no  one 
of  the  charges  has  rested  upon  any  statutable  misdemea- 
nour. It  seems,  then,  to  be  the  settled  doctrine  of 
the  high  court  of  impeachment,  that  though  the  com- 
mon law  cannot  be  a  foundation  of  a  jurisdiction  not 
given  by  the  constitution,  or  laws,  that  jurisdiction, 
when  given,  attaches,  and  is  to  be  exercised  according 
to  the  rules  of  the  common  law  ;  and  that,  what  are,  and 
what  are  not  high  crimes  and  misdemeanours,  is  to  be 
ascertained  by  a  recurrence  to  that  great  basis  of 
American  jurisprudence. 

^  406.  As  it  is  declared  in  one  clause  of  the 
constitution,  that  "judgment,  in  cases  of  impeach- 
"  ment,  shall  not  extend  further,  than  a  removal 
"  from  office,  and  disqualification  to  hold  any  office  of 


CH.  X.]  THE  SENATE.  289 

"honour,  trust,  or  profit,  under  the  United  States;'* 
and  in  another  clause,  that  "  the  president,  vice-presi- 
"  dent,  and  all  civil  officers  of  the  United  States,  shall 
"  be  removed  from  office  on  impeachment  for,  and  con- 
"  viction  of,  treason,  bribery,  or  other  high  crimes  or 
"  misdemeanours ; "  it  would  seem  to  follow,  that  the 
senate,  on  the  conviction,  were  bound,  in  all  cases,  to 
enter  a  judgment  of  removal  from  office,  though  it  has 
a  discretion,  as  to  inflicting  the  punishment  of  disquali- 
fication. If,  then,  there  must  be  a  judgment  of  re- 
moval from  office,  it  would  seem  to  follow,  that  the 
constitution  contemplated,  that  the  party  was  still  in 
office  at  the  time  of  the  impeachment.  If  he  was  not, 
his  offence  was  still  liable  to  be  tried  and  punished  in 
the  ordinary  tribunals  of  justice.  And  it  might  be 
argued  with  some  force,  that  it  would  be  a  vain  exer- 
cise of  authority  to  try  a  delinquent  for  an  impeachable 
offence,  when  the  most  important  object,  for  which  the 
remedy  was  given,  was  no  longer  necessary,  or  attaina- 
ble. And  although  a  judgment  of  disqualification  might 
still  be  pronounced,  the  language  of  the  constitution 
may  create  some  doubt,  whether  it  can  be  pronounced 
without  being  coupled  with  a  removal  from  office. 
There  is  also  much  force  in  the  remark,  that  an  impeach- 
ment is  a  proceeding  purely  of  a  political  nature.  It  is 
not  so  much  designed  to  punish  an  offender,  as  to  secure 
the  state  against  gross  official  misdemeanors.  It  touch- 
es neither  his  person,  nor  his  property ;  but  simply 
divests  him  of  his  political  capacity. 

^  407.  Having  thus  gone  through  the  subject  of 
impeachments,  it  only  remains  to  observe,  that  a  close 
survey  of  the  system,  unless  we  are  egregiously  de- 
ceived, will  completely  demonstrate  the  wisdom  of  the 
arrangements  made  in  every  part  of  it.     The  jurisdic- 

Abr.  37 


290  CONSTITUTION  OF  THE  U.  STATES.     [bOOK  III. 

tion  to  impeach  is  placed,  where  it  should  be,  in  the 
possession  and  power  of  the  immediate  representatives 
of  the  people.  The  trial  is  before  a  body  of  great  dig- 
nity, and  ability,  and  independence,  possessing  the 
requisite  knowledge  and  firmness  to  act  with  vigour, 
and  to  decide  with  impartiality  upon  the  charges.  The 
persons  subjected  to  the  trial  are  officers  of  the  nation- 
al government;  and  the  offences  are  such,  as  may 
affect  the  rights,  duties,  and  relations  of  the  party  ac- 
cused to  the  public  in  his  political  or  official  character, 
either  directly  or  remotely.  The  general  rules  of  law 
and  evidence,  applicable  to  common  trials,  are  interpos- 
ed, to  protect  the  party  against  the  exercise  of  wanton 
oppression,  and  arbitrary  power.  And  the  final  judg- 
ment is  confined  to  a  removal  from,  and  disqualification 
for,  office  ;  thus  Umiting  the  punishment  to  such  modes 
of  redress,  as  are  peculiarly  fit  for  a  political  tribunal  to 
administer,  and  as  will  secure  the  public  against  politi- 
cal injuries.  In  other  respects  the  offence  is  left  to  be 
disposed  of  by  the  common  tribunals  of  justice,  accord- 
ing to  the  laws  of  the  land,  upon  an  indictment  found 
by  a  grand  jury,  and  a  trial  by  jury  of  peers,  before 
whom  the  party  is  to  stand  for  his  final  dehverance,  Uke 
his  fellow  citizens. 


CH.  XI.]  ELECTIONS.  291 

CHAPTER  XL 

ELECTIONS    AND    MEETINGS    OF    CONGRESS. 

§  408.  The  first  clause  of  the  fourth  section  of  the 
first  article  is  as  follows :  "  The  times,  places,  and  man- 
"  ner  of  holding  elections  for  senators  and  representa- 
"  tives  shall  be  prescribed  in  each  state  by  the  legisla- 
"  ture  thereof.  But  the  congress  may,  at  any  time,  by 
"  law,  make  or  alter  such  regulations,  except  as  to  the 
"  place  of  choosing  senators." 

^  409.  This  clause  does  not  appear  to  have  attracted 
much  attention,  or  to  have  encountered  much  opposi- 
tion in  the  convention,  at  least  as  far,  as  can  be  gather- 
ed from  the  journal  of  that  body.  But  it  was  afterwards 
assailed  by  the  opponents  of  the  constitution,  both  in 
and  out  of  the  state  conventions,  with  uncommon  zeal 
and  virulence.  The  objection  was  not  to  that  part  of 
the  clause,  which  vests  in  the  state  legislatures  the  pow- 
er of  prescribing  the  times,  places,  and  manner  ofliold- 
ing  elections ;  for,  so  far,  it  was  a  surrender  of  power  to 
the  state  governments.  But  it  was,  to  the  superintend- 
ing power  of  congress  to  make,  or  alter  such  regulations. 
It  was  said,  that  such  a  superintending  power  would  be 
dangerous  to  the  hberties  of  the  people,  and  to  a  just 
exercise  of  their  privileges  in  elections.  Congress 
might  prescribe  the  times  of  election  so  unreasonably, 
as  to  prevent  the  attendance  of  the  electors ;  or  the 
place  at  so  inconvenient  a  distance  from  the  body  of 
the  electors,  as  to  prevent  a  due  exercise  of  the  right 
of  choice.  And  congress  might  contrive  the  manner  of 
holding  elections,  so  as  to  exclude  all  but  their  own 
favourites  from  office.     They  might  modify  the  right  of 


292   CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

elections,  as  they  should  please;  they  might  regulate  the 
number  of  votes  by  the  quantity  of  property,  without 
involving  any  repugnancy  to  the  constitution.  These, 
and  other  suggestions  of  a  similar  nature,  calculated  to 
spread  terror  and  alarm  among  the  people,  were  dwelt 
upon  with  peculiar  emphasis. 

§  410.  In  answer  to  all  such  reasoning,  it  was  urged, 
that  there  was  not  a  single  article  in  the  whole  system 
more  completely  defensible.  Its  propriety  rested  upon 
this  plain  proposition,  that  every  government  ought  to 
contain  in  itself  the  means  of  its  own  preservation.  If, 
in  the  constitution,  there  were  some  departures  from 
this  principle,  (as  it  might  be  admitted  there  were,)  they 
were  matters  of  regret,  and  dictated  by  a  controlling 
moral  or  political  necessity  ;  and  they  ought  not  to  be 
extended.  It  was  obviously  impracticable  to  frame,  and 
insert  in  the  constitution  an  election  law,  which  would 
be  applicable  to  all  possible  changes  in  the  situation  of 
the  country,  and  convenient  for  all  the  states.  A  dis- 
cretionary power  over  elections  must  be  vested  some- 
where. There  seemed  but  three  ways,  in  which  it 
could  be  reasonably  organized.  It  might  be  lodged 
either  wholly  in  the  national  legislature ;  or  wholly  in  the 
state  legislatures ;  or  primarily  in  the  latter,  and  uhi- 
mately  in  the  former.  The  last  was  the  mode  adopted 
by  the  convention.  The  regulation  of  elections  is 
submitted,  in  the  first  instance,  to  the  local  govern- 
ments, which,  in  ordinary  cases,  and  when  no  improper 
views  prevail,  may  both  conveniently  and  satisfactorily 
be  by  them  exercised.  But,  in  extraordinary  circum- 
stances, the  power  is  reserved  to  the  national  govern- 
ment ;  so  that  it  may  not  be  abused,  and  thus  hazard  the 
safety  and  permanence  of  the  Union.  Nor  let  it  be 
thought,  that  such  an  occurrence  is  wholly  imaginary. 


CH.  XI.]  ELECTIONS.  293 

It  is  a  known  fact,  that,  under  the  confederation, 
Rhode-Island,  at  a  very  critical  period,  withdrew  her 
delegates  from  congress;  and  thus  prevented  some  im- 
portant measures  from  being  carried. 

^411.  The  objections,  then,  to  the  provision  are  not 
sound,  or  tenable.  The  reasons  in  its  favour  are,  on 
the  other  hand,  of  great  force  and  importance.  In  the 
j&rst  place,  the  power  may  be  apphed  by  congress  to 
correct  any  negligence  in  a  state  in  regard  to  elections, 
as  well  as  to  prevent  a  dissolution  of  the  government 
by  designing  and  refractory  states,  urged  on  by  some 
temporary  excitements.  In  the  next  place,  it  will  ope- 
rate as  a  check  in  favour  of  the  people  against  any  de- 
signs of  a  federal  senate,  and  their  constituents,  to  de- 
prive the  people  of  the  state  of  their  right  to  choose 
representatives.  In  the  next  place,  it  provides  a  rem- 
edy for  the  evil,  if  any  state,  by  reason  of  invasion,  or 
other  cause,  cannot  have  it  in  its  power  to  appoint  a 
place,  where  the  citizens  can  safely  meet  to  choose 
representatives.  In  the  last  place,  (as  the  plan  is 
but  an  experiment,)  it  may  hereafter  become  important, 
with  a  view  to  the  regular  operations  of  the  general 
government,  that  there  should  be  a  uniformity  in  the 
time  and  manner  of  electing  representatives  and  sena- 
tors, so  as  to  prevent  vacancies,  when  there  may  be 
calls  for  extraordinary  sessions  of  congress.  If  such  a 
time  should  occur,  or  such  a  uniformity  be  hereafter 
desirable,  congress  is  the  only  body  possessing  the 
means  to  produce  it. 

^412.  It  remains  only  to  notice  an  exception  to  the 
power  of  congress  in  this  clause.  It  is,  that  congress 
cannot  alter,  or  make  regulations,  "  as  to  the  place  of 
choosing  senators."  This  exception  is  highly  reasona- 
ble.   The  choice  is  to  be  made  by  the  state  legislature; 


294  CONSTITUTION  OF  THE  U.  STATES.       [bOOK    III. 


and  it  would  not  be  either  necessary,  or  becoming  in 
congress,  to  prescribe  the  place,  where  it  should  sit. 
This  exception  was  not  in  the  revised  draft  of  the  con- 
stitution ;  and  w^as  adopted  almost  at  the  close  of  the 
convention ;  not,  however,  without  some  opposition,  for 
nine  states  were  in  its  favour,  one  against  it,  and  one 
w^as  divided. 

§  413.  The  second  clause  of  the  fourth  section  of  the 
first  article  is  as  follows:  "The  congress  shall  assemble  at 
"least  once  in  every  year;  and  such  meeting  shall  be  on 
"  the  first  Monday  in  December,  unless  they  shall  by 
"law  appoint  a  different  day."  This  clause,  for  the 
first  time,  made  its  appearance  in  the  revised  draft  of 
the  constitution  near  the  close  of  the  convention ;  and 
was  silently  adopted,  and,  so  far  as  can  be  perceived, 
without  opposition.  Annual  parliaments  had  been 
long  a  favourite  opinion  and  practice  with  the  people 
of  England ;  and  in  America,  under  the  colonial  gov- 
ernments, they  were  justly  deemed  a  great  security 
to  public  Uberty.  The  present  provision  could  hardly 
be  overlooked  by  a  free  people,  jealous  of  their  rights ; 
and  therefore  the  constitution  fixed  a  constitutional 
period,  at  which  congress  should  assemble  in  every 
year,  unless  some  other  day  was  specially  prescribed. 
Thus,  the  legislative  discretion  was  necessarily  bound- 
ed ;  and  annual  sessions  were  placed  equally  beyond 
the  power  of  faction,  and  of  party,  of  power,  and  of 
corruption.  In  two  of  the  states  a  more  frequent  as- 
semblage of  the  legislature  was  known  to  exist.  But 
it  was  obvious,  that  from  the  nature  of  their  duties,  and 
the  distance  of  their  abodes,  the  members  of  congress 
ought  not  to  be  brought  together  at  shorter  periods, 
unless  upon  the  most  pressing  exigencies.     A  provi- 


CH.    XI.]  MEETINGS  OF  CONGRESS.  295 

sion,  so  universally  acceptable,  requires  no  vindication, 
or  commentary. 

§  414.  The  fifth  section  of  the  first  article  embraces 
provisions  principally  applicable  to  the  powers,  rights, 
and  duties  of  each  house  in  its  separate  corporate  char- 
acter. These  will  not  require  much  illustration  or  com- 
mentary, as  they  are  such,  as  are  usually  delegated  to 
all  legislative  bodies  in  free  governments ;  and  were  in 
practice  in  Great-Britain  at  the  time  of  the  emigration 
of  our  ancestors;  and  were  exercised  under  the  colonial 
governments ;  and  have  been  secured  and  recognised 
in  the  present  state  constitutions. 

^  415.  The  first  clause  declares,  that  "each  house 
"  shall  be  the  judge  of  the  elections,  returns,  and  quali- 
"  fications  of  its  own  members,  and  a  majority  of  each 
"  shall  constitute  a  quorum  to  do  business ;  but  a  smaller 
"  number  may  adjourn  from  day  to  day,  and  may  be 
"  authorized  to  compel  the  attendance  of  absent  mem- 
"  bers,  in  such  manner,  and  under  such  penalties,  as 
"  each  house  may  provide." 

§  416.  It  is  obvious,  that  a  power  must  be  lodged 
somewhere  to  judge  of  the  elections,  returns,  and  quali- 
fications of  the  members  of  each  house  composing  the 
legislature ;  for  otherwise  there  could  be  no  certainty, 
as  to  who  were  legitimately  chosen  members,  and  any 
intruder,  or  usurper,  might  claim  a  seat,  and  thus  tram- 
ple upon  the  rights,  and  privileges,  and  liberties  of  the 
people.  Indeed,  elections  would  become,  under  such 
circumstances,  a  mere  mockery;  and  legislation  the 
exercise  of  sovereignty  by  any  self-constituted  body. 
The  only  possible  question  on  such  a  subject  is,  as  to 
the  body,  in  which,  such  a  power  shall  be  lodged.  If 
lodged  in  any  other,  than  the  legislative  body  itself,  its 
independence,  its  purity,  and  even  its  existence  and 


296  CONSTITUTION  OF  THE  U.  STATES.      [BOOK  III. 

action  may  be  destroyed,  or  put  into  imminent  danger. 
No  other  body,  but  itself,  can  have  the  same  motives  to 
preserve  and  perpetuate  these  attributes ;  no  other 
body  can  be  so  perpetually  watchful  to  guard  its  own 
rights  and  privileges  from  infringement,  to  purify  and 
vindicate  its  own  character,  and  to  preserve  the  rights, 
and  sustain  the  free  choice  of  its  constituents.  Ac- 
cordingly, the  power  has  always  been  lodged  in  the 
legislative  body  by  the  uniform  practice  of  England 
and  America. 

^417.  The  propriety  of  establishing  a  rule  for  a 
quorum  for  the  despatch  of  business  is  equally  clear ; 
since  otherwise  the  concerns  of  the  nation  might  be 
decided  by  a  very  small  number  of  the  members  of 
each  body.  In  En.i>;land,  where  the  house  o[  commons 
consists  of  nearly  six  hundred  members,  the  number  of 
forty-five  constitutes  a  quorum  to  do  business.  In 
some  of  the  state  constitutions  a  particular  number  of 
the  members  constitutes  a  quorum  to  do  business  ;  in 
others,  a  majority  is  required.  The  constitution  of  the 
United  States  has  wisely  adopted  the  latter  course ; 
and  thus,  by  requiring  a  majority  for  a  quorum,  has 
secured  the  public  from  any  hazard  of  passing  laws  by 
surprise,  or  against  the  deliberate  opinion  of  a  majority 
of  the  representative  body. 

§  418.  But,  as  a  danger  of  an  opposite  sort  required 
equally  to  be  guarded  against,  a  smaller  number  is  au- 
thorized to  adjourn  from  day  to  day,  thus  to  prevent  a 
legal  dissolution  of  the  body,  and  also  to  compel  the 
attendance  of  absent  members.  Thus,  the  interests 
of  the  nation,  and  the  despatch  of  business,  are  not  sub- 
ject to  the  caprice,  or  perversity,  or  negligence  of  the 
minority.  It  was  a  defect  in  the  articles  of  confedera- 
tion, sometimes  productive  of  great  public  mischief,  that 


CH.  XI.]  MEETINGS  OF  CONGRESS.  297 

no  vote,  except  for  an  adjournment,  could  be  deter- 
mined, unless  by  the  votes  of  a  majority  of  the  states ; 
and  no  power  of  compelling  the  attendance  of  the  re- 
quisite number  existed.  '  ^ 


Abr.  38 


298  CONSTITUTION  OF  THE  U.  STATES.     [bOOK  III. 


CHAPTER  XII. 

PRIVILEGES  AND  POWERS  OF  BOTH  HOUSES  OF  CON- 
GRESS. 

^419.  The  next  clause  is,  "each  house  may  deter- 
"  mine  the  rules  of  its  proceedings,  punish  its  members 
"  for  disorderly  behaviour,  and,  with  the  concurrence  of 
"  two  thirds,  expel  a  member."     No  person  can  doubt 
the  propriety  of  the  provision  authorizmg  each  house  to 
determine  the  rules  of  its  own  proceedings.  If  the  power 
did  not  exist,  it  would  be  utterly  impracticable  to  trans- 
act the  business  of  the  nation,  either  at  all,  or  at  least 
with  decency,  deliberation,  and  order.     The  humblest 
assembly  of  men  is  understood  to  possess  this  power; 
and  it  would  be  absurd  to  deprive  the  councils  of  the 
nation  of  a  like  authority.     But  the  power  to  make 
rules  would  be  nugatory,  unless  it  was  coupled  with 
a  power  to  punish  for  disorderly  behaviour,  or  disobe- 
dience to  those  rules.     And  as  a  member  might  be  so 
lost  to  all  sense  of  dignity  and  duty,  as  to  disgrace  the 
house  by  the  grossness  of  his  conduct,  or  interrupt  its 
deliberations   by  perpetual   violence   or   clamour,  the 
powder  to  expel  for  very  aggravated  misconduct  was 
also  indispensable,  not  as  a  common,  but  as  an  ultimate 
redress  for  the  grievance.     But  such  a  power,  so  sum- 
mary, and  at  the  same  time  so  subversive  of  the  rights 
of  the  people,  it  was  foreseen,  might  be  exerted  for 
mere  purposes  of  faction  or  party,  to  remove  a  patriot, 
or  to  aid  a  corrupt  measure  ;  and  it  has  therefore  been 
wisely  guarded  by  the  restriction,  that  there  shall  be 
a  concurrence  of  two  thirds  of  the  members,  to  justify 


CH.  XII.]  PRIVILEGES  OF  CONGRESS.  299 

an  expulsion.  This  clause,  requiring  a  concurrence  of 
two  thirds,  was  not  in  the  original  draft  of  the  constitu- 
tion, but  it  was  inserted  by  a  vote  of  ten  states,  one 
being  divided.  A  like  general  authority  to  expel,  ex- 
ists in  the  British  house  of  commons ;  and  in  the  le- 
gislative bodies  of  many  of  the  states  composing  the 
Union. 

§  420.  The  next  clause  is,  "  each  house  shall  keep 
"  a  journal  of  its  proceedings,  and  from  time  to  time 
"  publish  the  same,  except  such  parts,  as  may  in  their 
"judgment  require  secrecy.  And  the  yeas  and  nays  of 
"  the  mem^bers  of  either  house  on  any  question  shall,  at 
"  the  desire  of  one  fifth  of  those  present,  be  entered  on 
"  the  journal." 

§  421.  This  clause  in  its  actual  form  did  not  pass  in 
the  convention  without  some  struggle  and  some  proposi- 
tions of  amendment.  The  object  of  the  whole  clause 
is  to  ensure  publicity  to  the  proceedings  of  the  legis- 
lature, and  a  correspondent  responsibility  of  the  mem- 
bers to  their  respective  constituents.  And  it  is  found- 
ed in  sound  policy  and  deep  political  foresight.  In- 
trigue and  cabal  are  thus  deprived  of  some  of  their 
main  resources,  by  plotting  and  devising  measures  in 
secrecy.  The  public  mind  is  enlightened  by  an  atten- 
tive examination  of  the  public  measures ;  patriotism, 
and  integrity,  and  wisdom  obtain  their  due  reward ; 
and  votes  are  ascertained,  not  by  vague  conjecture,  but 
by  positive  facts. 

^  422.  The  restriction  of  calls  of  the  yeas  and  nays 
to  one  fifth  is  founded  upon  the  necessity  of  preventing 
too  frequent  a  recurrence  to  this  mode  of  ascertaining 
the  votes,  at  the  mere  caprice  of  an  individual.  A  call 
consumes  a  great  deal  of  time,  and  often  embarasses 
the  just  progress  of  beneficial  measures.     It  is  said  to 


300  CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 

have  been  often  used  to  excess  in  the  congress  under 
the  confederation ;  and  even  under  the  present  con- 
stitution it  is  notoriously  used,  as  an  occasional  annoy- 
ance, by  a  dissatisfied  minority,  to  retard  the  passage 
of  measures,  which  are  sanctioned  by  the  approbation 
of  a  strong  majority.  The  check,  therefore,  is  not 
merely  theoretical ;  and  experience  show^s,  that  it  has 
been  resorted  to,  at  once  to  admonish  members,  and 
to  control  them  in  this  abuse  of  the  public  patience  and 
the  public  indulgence. 

^  423.  The  next  clause  is,  "  nieither  house,  during 
"  the  session  of  congress,  shall,  v^ithout  the  consent  of 
"  the  other,  adjourn  for  more  than  three  days,  nor  to 
"  any  other  place,  than  that,  in  which  the  two  houses 
"  shall  be  sitting."  It  is  observable,  that  the  duration 
of  each  session  of  congress,  (subject  to  the  constitutional 
termination  of  their  official  agency,)  depends  solely 
upon  their  own  will  and  pleasure,  with  the  single  ex- 
ception, as  will  be  presently  seen,  of  cases,  in  which  the 
two  houses  disagree  in  respect  to  the  time  of  adjourn- 
ment. In  no  other  case  is  the  president  allowed  to 
interfere  with  the  time  and  extent  of  their  deliberations. 
And  thus  their  independence  is  effectually  guarded 
against  any  encroachment  on  the  part  of  the  executive. 
Very  different  is  the  situation  of  parliament  under  the 
British  constitution  ;  for  the  king  may,  at  any  time,  put 
an  end  to  a  session  by  a  prorogation  of  parliament,  or 
terminate  the  existence  of  parliament  by  a  dissolution, 
and  a  call  of  a  new  parliament.  It  is  true,  that  each 
house  has  authority  to  adjourn  itself  separately;  and 
this  is  commonly  done  from  day  to  day,  and  sometimes 
for  a  week  or  a  month  together,  as  at  Christmas  and 
Easter,  or  upon  other  particular  occasions.  But  the  ad- 
journment of  one  house  is  not  the  adjournment  of  the 


CH.  XII.]  PRIVILEGES  OF  CONGRESS.  301 

Other.  And  it  is  usual,  when  the  king  signifies  his  pleas- 
ure, that  both,  or  either  of  the  houses  should  adjourn 
themselves  to  a  certain  day,  to  obey  the  king's  pleasure, 
and  adjourn  accordingly ;  for  otherwise  a  prorogation 
would  certainly  follow. 

^  424.  Under  the  colonial  governments,  the  undue 
exercise  of  the  same  power  by  the  royal  governors 
constituted  a  great  public  grievance,  and  was  one  of  the 
numerous  cases  of  misrule,  upon  which  the  declaration 
of  independence  strenuously  relied.  It  was  there  sol- 
emnly charged  against  the  king,  that  he  had  called  to- 
gether legislative  [colonial]  bodies  at  places  unusual, 
uncomfortable,  and  distant  from  the  repository  of  the 
public  records  ;  that  he  had  dissolved  representative 
bodies,  for  opposing  his  invasions  of  the  rights  of  the 
people ;  and  after  such  dissolutions,  he  had  refused  to 
reassemble  them  for  a  long  period  of  time.  It  was 
natural,  therefore,  that  the  people  of  the  United  States 
should  entertain  a  strong  jealousy  on  this  subject,  and 
should  interpose  a  constitutional  barrier  against  any  such 
abuse  by  the  prerogative  of  the  executive.  The  state 
constitutions  generally  contain  some  provision  on  the 
same  subject,  as  a  security  to  the  independence  of  the 
legislature. 

§  425.  These  are  all  the  powers  and  privileges, 
which  are  expressly  vested  in  each  house  of  congress 
by  the  constitution.  What  further  powers  and  privi- 
leges they  incidentally  possess  has  been  a  question  much 
discussed,  and  may  hereafter  be  open,  as  new  cases 
arise,  to  still  further  discussion.  It  is  remarkable,  that  no 
power  is  conferred  to  punish  for  any  contempts  com- 
mitted against  either  house;  and  yet  it  is  obvious,  that, 
unless  such  a  power,  to  some  extent,  exists  by  impli- 
cation, it  is  utterly  impossible  for  either  house  to  per- 


302     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

form  its  constitutional  functions.  For  instance,  how  is 
either  house  to  conduct  its  own  dehberations,  if  it  may 
not  keep  out,  or  expel  intruders  ?  If  it  may  not  require, 
and  enforce  upon  strangers  silence  and  decorum  in  its 
presence  ?  If  it  may  not  enable  its  own  members  to 
have  free  ingress,  egress,  and  regress  to  its  own  hall  of 
legislation  ?  And  if  the  power  exists,  by  implication,  to 
require  the  duty,  it  is  wholly  nugatory,  unless  it  draws 
after  it  the  incidental  authority  to  compel  obedience, 
and  to  punish  violations  of  it. 

§  426.  This  subject  has  of  late  undergone  a  great 
deal  of  discussion  both  in  England  and  America ;  and 
has  finally  received  the  adjudication  of  the  highest  ju- 
dicial tribunals  in  each  country.  In  each  country 
upon  the  iullest  consideration  the  result  was  the  same, 
viz.  that  the  power  did  exist,  and  that  the  legislative 
body  was  the  proper  and  exclusive  forum  to  de- 
cide, when  the  contempt  existed,  and  when  there 
was  a  breach  of  its  privileges ;  and,  that  the  power  to 
punish  followed,  as  a  necessary  incident,  to  the  power  to 
take  cognizance  of  the  offence. 

^  427.  The  power  to  punish  for  contempts,  thus  as- 
serted both  in  England  and  America,  is  confined  to 
punishment  during  the  session  of  the  legislative  body, 
and  cannot  be  extended  beyond  it.  It  seems,  that 
the  power  of  congress  to  punish  cannot,  in  its  utmost 
extent,  proceed  beyond  imprisonment ;  and  then  it 
terminates  with  the  adjournment,  or  dissolution  of  that 
body. 

^  428.  The  sixth  section  of  the  first  article  contains 
an  enumeration  of  the  rights,  privileges,  and  disabilities 
of  the  members  of  each  house  in  their  personal  and  in- 
dividual characters,  as  contradistinguished  from  the 
rights,  privileges,  and  disabilities  of  the  body,  of  which 


CH.  XII.]  PRIVILEGES  OF  CONGRESS.  ^  303 

they  are  members.  It  may  here,  again,  be  remarked, 
that  these  rights  and  privileges  are,  in  truth,  the  rights 
and  privileges  of  their  constituents,  and  for  their  benefit 
and  security,  rather  than  the  rights  and  privileges  of 
the  member  for  his  own  benefit  and  security.  In  like 
manner,  the  disabilities  imposed  are  founded  upon  the 
same  comprehensive  policy ;  to  guard  the  powers  of  the 
representative  from  abuse,  and  to  secure  a  wdse,  im- 
partial, and  uncorrupt  administration  of  his  duties. 

^  429.  The  first  clause  is  as  follows :  "  The  senators 
"  and  representatives  shall  receive  a  compensation  for 
"  their  services,  to  be  ascertained  by  law%  and  paid  out 
"  of  the  treasury  of  the  United  States.  They  shall,  in 
"  all  cases,  except  treason,  felony,  and  breach  of  the 
"  peaoe,  be  privileged  from  arrest  during  their  attend- 
"  ance  at  the  session  of  their  respective  houses,  and  in 
"  going  to,  and  returning  from,  the  same.  And  for  any 
"  speech  or  debate  in  either  house  they  shall  not  be 
"  questioned  in  any  other  place." 

^  430.  Whether  it  is,  on  the  whole,  best  to  allow  to 
members  of  legislative  bodies  a  compensation  for  their 
services,  or  whether  their  services  should  be  consider- 
ed merely  honorary,  is  a  question  admitting  of  much 
argument  on  each  side ;  and  it  has  accordingly  found 
strenuous  advocates,  and  opponents,  not  only  in  specu- 
lation, but  in  practice.  It-  is  well  known,  that  in  Eng- 
land none  is  now  allowed,  or  claimed  ;  and  there  can  be 
litde  doubt,  that  public  opinion  there  is  altogether  in 
favour  of  their  present  course.  On  the  other  hand,  in 
America  an  opposite  opinion  prevails  among  those 
whose  influence  is  most  impressive  with  the  people  on 
such  subjects.  It  is  not  surprising,  that  under  such 
circumstances,  there  should  have  been  a  considerable 
diversity  of  opinion  manifested  in  the  convention  itself. 


304     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

§  431.  The  principal  reasons  in  favour  of  a  compen- 
sation may  be  presumed  to  have  been  the  following. 
In  the  first  place,  the  advantage  is  secured  of  command- 
ing the  first  talents  of  the  nation  in  the  public  councils, 
by  removing  a  virtual  disqualification,  that  of  poverty, 
from  that  large  class  of  men,  who,  though  favoured  by 
nature,  might  not  be  favoured  by  fortune.  It  could 
hardly  be  expected,  that  such  men  would  make  the 
necessary  sacrifices  in  order  to  gratify  their  ambition 
for  a  public  station  ;  and  if  they  did,  there  was  a  cor- 
responding danger,  that  they  might  be  compelled  by 
their  necessities,  or  tempted  by  their  wants,  to  yield 
up  their  independence,  and  perhaps  their  integrity,  to 
the  allurements  of  the  corrupt,  or  the  opulent.  In  the 
next  plac^,  it  would,  in  a  proportionate  degree,  gratify 
the  popular  feeling  by  enlarging  the  circle  of  candi- 
dates, from  which  members  might  be  chosen,  and  bring- 
ing the  office  within  the  reach  of  persons  in  the  middle 
ranks  of  society,  although  they  might  not  possess  shin- 
ing talents ;  a  course  best  suited  to  the  equality  found, 
and  promulgated  in  a  republic.  In  the  next  place,  it 
would  make  a  seat  in  the  national  councils,  as  attrac- 
tive, and  perhaps  more  so,  than  in  those  of  the  state  by 
the  superior  emoluments  of  office.  And  in  the  last 
place  it  would  be  in  conformity  to  a  long  and  well  set- 
tled practice,  which  embodied  public  sentiment,  and 
had  been  sanctioned  by  public  approbation. 

^  432.  On  the  other  hand,  it  might  be,  and  it  was, 
probably,  urged  against  it,  that  the  practice  of  allowing 
compensation  was  calculated  to  make  the  office  rather 
more  a  matter  of  bargain  and  speculation,  than  of  high 
political  ambition.  It  would  operate,  as  an  inducement 
to  vulgar  and  grovelling  demagogues,  of  little  talent, 
and  narrow  means,  to  defeat  the  claims  of  higher  can- 


CH.  XII.]  PRIVILEGES  OF  CONGRESS.  305 

didates,  than  themselves ;  and  with  a  view  to  the  com- 
pensation alone  to  engage  in  all  sorts  of  corrupt  intrigues 
to  procure  their  own  election.  It  would  thus  degrade 
these  high  trusts  from  being  deemed  the  reward  of 
distinguished  merit,  and  strictly  honorary,  to  a  mere 
traffic  for  pohtical  office,  which  would  first  corrupt  the 
people  at  the  polls,  and  then  subject  their  liberties  to 
be  bartered  by  their  venal  candidate.  Men  of  talents 
in  this  way  would  be  compelled  to  degradation,  in  or- 
der to  acquire  office,  or  would  be  excluded  by  more 
unworthy,  or  more  cunning  candidates,  who  w^ould  feel^ 
that  the  labourer  was  worthy  of  his  hire.  There  is  no 
danger,  that  the  want  of  compensation  would  deter 
men  of  suitable  talents  and  virtues,  even  in  the  humbler 
walks  of  life,  from  becoming  members ;  since  it  could 
scarcely  be  presumed,  that  the  pubhc  gratitude  would 
not,  by  other  means,  aid  them  in  their  private  business, 
and  increase  their  just  patronage.  And  if,  in  a  few 
cases,  it  should  be  otherwise,  it  should  not  be  forgotten, 
that  one  of  the  most  wholesome  lessons  to  be  taught 
in  republics  is,  that  men  should  learn  suitable  econo- 
my and  prudence  in  their  private  affairs  ;  and  that 
profusion  and  poverty  are,  with  a  few  splendid  ex- 
ceptions, equally  unsafe  to  be  entrusted  with  the  public 
rights  and  interests,  since,  if  they  do  not  betray,  they 
can  hardly  be  presumed  willing  to  protect  them. 
The  practice  of  England  abundantly  showed,  that  com- 
pensation was  not  necessary  to  bring  into  public  hfe 
the  best  talents  and  virtues  of  the  nation.  In  looking 
over  her  list  of  distinguished  statesmen,  of  equal  purity 
and  patriotism,  it  would  be  found,  that  comparatively 
few  had  possessed  opulence ;  and  many  had  struggled 
through  life  with  the  painful  pressure  of  narrow  re- 
sources, the  res  angusta  domL 

Abr.  39 


306  CONSTITUTION  OF  THE  U.  STATES.     [bOOK  III. 

^  433.  If  it  be  proper  to  allow  a  compensation  for 
services  to  the  members  of  congress,  there  seems  the 
utmost  propriety  in  its  being  paid  out  of  the  public 
treasury  of  the  United  States.  The  labour  is  for  the 
benefit  of  the  nation,  and  it  should  properly  be  remu- 
nerated by  the  nation.  Besides  ;  if  the  compensation 
were  to  be  allowed  by  the  states,  or  by  the  constituents 
of  the  members,  if  left  to  their  discretion,  it  might  keep 
the  latter  in  a  state  of  slavish  dependence,  and  might 
introduce  great  inequalities  in  the  allowance.  And  if 
it  were  to  be  ascertained  by  congress,  and  paid  by  the 
constituents,  there  would  always  be  danger,  that  the 
rule  would  be  fixed  to  suit  those,  who  were  the  least  en- 
lightened, and  the  most  parsimonious,  rather  than  those, 
who  acted  upon  a  high  sense  of  the  dignity  and  the 
duties  of  the  station.  Fortunately,  it  is  left  for  the  de- 
cision of  congress.  The  compensation  is  "  to  be  ascer- 
tained by  law  ; "  and  never  addresses  itself  to  the  pride, 
or  the  parsimony,  the  local  prejudices,  or  local  habits  of 
any  part  of  the  Union.  It  is  fixed  with  a  liberal  view 
to  the  national  duties,  and  is  paid  from  the  national  purse. 
If  the  compensation  had  been  left,  to  be  fixed  by  the 
state  legislature,  the  general  government  would  have 
become  dependent  upon  the  governments  of  the  states ; 
and  the  latter  could  almost,  at  their  pleasure,  have  dis- 
solved it.  Serious  evils  were  felt  from  this  source  under 
the  confederation,  by  which  each  state  was  to  maintain 
its  own  delegates  in  congress  ;  for  it  was  found,  that  the 
states  too  often  were  operated  upon  by  local  consid- 
erations, as  contradistinguished  from  general  and  nation- 
al interests. 

§  434.  The  only  practical  question,  which  seems  to 
have  been  farther  open  upon  this  head,  is,  whether  the 
compensation  should  have  been  ascertained  by  the  con- 


CH.  XII.]  PRIVILEGES  OF  CONGRESS.  307 

stitution  itself,  or  left,  (as  it  now  is,)  to  be  ascertained 
from  time  to  time  by  congress.  If  fixed  by  the  consti- 
tution, it  might,  from  the  change  of  the  value  of  money, 
and  the  modes  of  life,  have  become  too  low,  and  utterly 
inadequate.  Or  it  might  have  become  too  high  in  con- 
sequence of  serious  changes  in  the  prosperity  of  the 
nation.  It  is  wisest,  therefore,  to  have  it  left,  where  it 
is,  to  be  decided  by  congress  from  time  to  time,  accord- 
ing to  their  own  sense  of  justice,  and  a  large  view  of 
the  national  resources. 

^  435.  The  next  part  of  the  clause  regards  the  priv- 
ilege of  the  members  from  arrest,  except  for  crimes, 
during  their  attendance  at  the  sessions  of  congress,  and 
their  going  to,  and  returning  from  them.  This  privi- 
lege is  conceded  by  law  to  the  humblest  suitor  and  wit- 
ness in  a  court  of  justice;  and  it  would  be  strange,  in- 
deed, if  it  were  denied  to  the  highest  functionaries  of 
the  state  in  the  discharge  of  their  public  duties.  It 
belongs  to  congress  in  common  with  all  other  legisla- 
tive bodies,  which  exist,  or  have  existed  in  America, 
since  its  first  setdement,  under  every  variety  of  gov- 
ernment ;  and  it  has  immemorially  constituted  a  privi- 
lege of  both  houses  of  the  British  parliament.  It  seems 
absolutely  indispensable  for  the  just  exercise  of  the 
legislative  power  in  every  nation,  purporting  to  possess 
a  free  constitution  of  government ;  and  it  cannot  be 
surrendered  without  endangering  the  public  liber- 
ties, as  well  as  the  private  independence  of  the  mem- 
bers. 

^  436.  The  effect  of  this  privilege  is,  that  the  arrest 
of  the  member  is  unlawful,  and  a  trespass  ah  initio,  for 
which  he  may  maintain  an  action,  or  proceed  against  the 
aggressor  by  way  of  indictment.  He  may  also  be  dis- 
charged by  motion  to  a  court  of  justice,  or  upon  a  writ 


308        CONSTITUTION  OF  THE  U.  STATES.        [BOOK  III. 

of  habeas  corpus  ;  and  the  arrest  may  also  be  punished, 
as  a  contempt  of  the  house. 

§  437.  In  respect  to  the  time  of  going  and  returning, 
the  law  is  not  so  strict  in  point  of  time,  as  to  require 
the  party  to  set  out  immediately  on  his  return  ;  but 
allows  him  time  to  settle  his  private  affairs,  and  to  pre- 
pare for  feis  journey.  Nor  does  it  nicely  scan  his  road, 
nor  is  his  protection  forfeited,  by  a  little  deviation  from 
that,  which  is  most  direct;  for  it  is  supposed,  that  some 
superior  convenience  or  necessity  directed  it.  The 
privilege  from  arrest  takes  place  by  force  of  the  elec- 
tion, and  before  the  member  has  taken  his  seat,  or  is 
sworn. 

^  438.  The  exception  to  the  privilege  is,  that  it  shall 
not  extend  to  "  treason,  felony,  or  breach  of  the  peace.*' 
These  w^ords  are  the  same  as  those,  in  which  the  ex- 
ception to  the  privilege  of  parliament  is  usually  express- 
ed at  the  common  law,  and  was  doubtless  borrowed 
from  that  source.  Now,  as  all  crimes  are  offences 
against  the  peace,  the  phrase  "  breach  of  the  peace  " 
would  seem  to  extend  to  all  indictable  offences,  as  well 
those,  which  are,  in  fact,  attended  with  force  and  vio- 
lence, as  those,  which  are  only  constructive  breaches 
of  the  peace  of  the  government,  inasmuch  as  they  vio- 
late its  good  order.  And  so  in  truth  it  was  decided  in 
parliament,  in  the  case  of  a  seditious  libel,  published  by 
a  member,  (Mr.  Wilkes,)  against  the  opinion  of  Lord 
Camden  and  the  other  judges  of  the  Court  of  Common 
Pleas  ;  and,  as  it  wdll  probably  now  be  thought,  since 
the  party  spirit  of  those  times  has  subsided,  with  entire 
good  sense,  and  in  furtherance  of  public  justice.  It 
would  be  monstrous,  that  any  member  should  protect 
himself  from  arrest,  or  punishment  for  a  libel,  often  a 
crime  of  the  deepest  malignity  and  mischief,  while  he 


CH.  XII.]  PRIVILEGES   OF  CONGRESS.  309 

would  be  liable  to  arrest  for  the  pettiest  assault,  or  the 
most  insignificant  breach  of  the  peace. 

^  439.  The  next  great  and  vital  privilege  is  the  free- 
dom of  speech  and  debate,  without  which  all  other 
privileges  would  be  comparatively  unimportant,  or  inef- 
fectual. This  privilege  also  is  derived  from  the  prac- 
tice of  the  British  parliament,  and  was  in  full  exercise 
in  our  colonial  legislatures,  and  now  belongs  to  the  leg- 
islature of  every  state  in  the  Union,  as  matter  of  consti- 
tutional right.  In  the  British  parliament  it  is  a  claim  of 
immemorial  right,  and  is  now  farther  fortified  by  an  act 
of  parliament ;  and  it  is  always  particularly  demanded 
of  the  king  in  person  by  the  speaker  of  the  house  of 
commons,  at  the  opening  of  every  new  parliament. 
But  this  privilege  is  strictly  confined  to  things  done  in 
the  course  of  parliamentary  proceedings,  and  does  not 
cover  things  done  beyond  the  place  and  limits  of  duty. 
Therefore,  although  a  speech  delivered  in  the  house  of 
commons  is  privileged,  and  the  member  cannot  be 
questioned  respecting  it  elsewhere  ;  yet,  if  he  publishes 
his  speech,  and  it  contains  libellous  matter,  he  is  liable 
to  an  action  and  prosecution  therefor,  as  in  common 
cases  of  libel.  And  the  same  principles  seem  applica- 
ble to  the  privilege  of  debate  and  speech  in  congress. 
No  man  ought  to  have  a  right  to  defame  others  under 
colour  of  a  performance  of  the  duties  of  his  oflice.  And 
if  he  does  so  in  the  actual  discharge  of  his  duties  in 
congress,  that  furnishes  no  reason,  why  he  should  be 
enabled  through  the  medium  of  the  press  to  destroy 
the  reputation,  and  invade  the  repose  of  other  citizens. 
It  is  neither  within  the  scope  of  his  duty,  nor  in  further- 
ance of  public  rights,  or  public  policy.  Every  citizen 
has  as  good  a  right  to  be  protected  by  the  laws  from 
malignant  scandal,  and  false  charges,  and  defamatory 


310  CONSTITUTION  OF  THE  U.   STATES.     [bOOK  III. 

imputations,  as  a  member  of  congress  has  to  utter  them 
in  his  seat.  If  it  were  otherwise,  a  man's  character 
might  be  taken  away  without  the  possibility  of  redress, 
either  by  the  mahce,  or  indiscretion,  or  overweaning 
self-conceit  of  a  member  of  congress.  It  is  proper, 
however,  to  apprise  the  learned  reader,  that  it  has 
been  recently  denied  in  congress  by  very  distinguished 
lawyers,  that  the  privilege  of  speech  and  debate  in  con- 
gress does  not  extend  to  publication  of  his  speech. 
And  they  ground  themselves  upon  an  important  distinc- 
tion arising  from  the  actual  differences  between  English 
and  American  legislation.  In  the  former,  the  publica- 
tion of  the  debates  is  not  strictly  lawful,  except  by  h- 
cense  of  the  house.  In  the  latter,  it  is  a  common  right, 
exercised  and  supported  by  the  direct  encouragement 
of  the  body.  This  reasoning  deserves  a  very  attentive 
examination. 

§  440.  The  next  clause  regards  the  disquahfications 
of  members  of  congress  ;  and  is  as  follows :  "  'No  sen- 
"  ator  or  representative  shall,  during  the  time,  for  which 
"  he  was  elected,  be  appointed  to  any  civil  office  under 
"  the  authority  of  the  United  States,  which  shall  have 
"  been  created,  or  the  emoluments  whereof  shall  have 
"  been  increased,  during  such  time.  And  no  person, 
"  holding  any  office  under  the  United  States,  shall  be 
"  a  member  of  either  house  of  congress  during  his  con- 
"  tinuance  in  office."  This  clause  does  not  appear  to 
have  met  with  any  opposition  in  the  convention,  as  to 
the  propriety  of  some  provision  on  the  subject,  the 
principal  question  being,  as  to  the  best  mode  of  express- 
ing the  disqualifications.  It  has  been  deemed  by  one 
commentator  an  admirable  provision  against  venality, 
though  not  perhaps  sufficiently  guarded  to  prevent 
evasion.     And  it  has  been  elaborately  vindicated  by 


CH.  XII.]  PRIVILEGES  OF  CONGRESS.  311 

another  with  uncommon  earnestness.  The  reasons 
for  excluding  persons  from  offices,  who  have  been  con- 
cerned in  creating  them,  or  increasing  their  emoluments, 
are,  to  take  away,  as  far  as  possible,  any  improper  bias 
in  the  vote  of  the  representative,  and  to  secure  to  the 
constituents  some  solemn  pledge  of  his  disinterested- 
ness. The  actual  provision,  however,  does  not  go  to 
the  extent  of  the  principle  ;  for  his  appointment  is  re- 
stricted only  "  during  the  time,  for  which  he  was  elect- 
ed ; "  thus  leaving  in  full  force  every  influence  upon 
his  mind,  if  the  period  of  his  election  is  short,  or  the 
duration  of  it  is  approaching  its  natural  termination.  It 
has  sometimes  been  matter  of  regret,  that  the  disquah- 
fication  had  not  been  made  co-extensive  with  the  sup- 
posed mischief;  and  thus  to  have  for  ever  excluded 
members  from  the  possession  of  offices  created,  or  ren- 
dered more  lucrative,  by  themselves.  Perhaps  there  is 
quite  as  much  wisdom  in  leaving  the  provision,  where  it 
now  is. 

^  441.  The  other  part  of  the  clause,  which  disquali- 
fies persons  holding  any  office  under  the  United  States 
from  being  members  of  either  house  during  their  con- 
tinuance in  office,  has  been  still  more  universally  ap- 
plauded ;  and  has  been  vindicated  upon  the  highest 
grounds  of  public  policy.  It  is  doubdess  founded  in  a 
deference  to  state  jealousy,  and  a  sincere  desire  to  ob- 
viate the  fears,  real  or  imaginary,  that  the  general  gov- 
ernment would  obtain  an  undue  preference  over  the 
state  governments.  It  has  also  the  strong  recommen- 
dation, that  it  prevents  any  undue  influence  from  office, 
either  upon  the  party  himself,  or  those,  with  whom  he 
is  associated  in  legislative  deliberations.  The  universal 
exclusion  of  all  persons  holding  office  is  (it  must  be 
admitted)  attended  with  some  inconveniences.     The 


312         CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 

heads  of  the  departments  are,  in  fact,  thus  precluded 
from  proposing,  or  vindicating  their  own  measures  in 
the  face  of  the  nation  in  the  course  of  debate  ;  and  are 
compelled  to  submit  them  to  other  men,  who  are  either 
imperfectly  acquainted  with  the  measures,  or  are  indif- 
ferent to  their  success  or  failure.  Thus,  that  open  and 
public  responsibiUty  for  measures,  which  properly  be- 
longs to  the  executive  in  all  governments,  and  espe- 
cially in  a  repubhcan  government,  as  its  greatest  secu- 
rity and  strength,  is  completely  done  away.  The 
executive  is  compelled  to  resort  to  secret  and  unseen  in- 
fluence, to  private  interviews,  and  private  arrangements, 
to  accompUsh  its  own  appropriate  purposes ;  instead  of 
proposing  and  sustaining  its  ow^n  duties  and  measures 
by  a  bold  and  manly  appeal  to  the  nation  in  the  face  of 
its  representatives.  One  consequence  of  this  state  of 
things  is,  that  there  never  can  be  traced  home  to  the 
executive  any  responsibility  for  the  measures,  which 
are  planned,  and  carried  at  its  suggestion.  Another 
consequence  will  be,  (if  it  has  not  yet  been,)  that  mea- 
sures will  be  adopted,  or  defeated  by  private  intrigues, 
poUtical  combinations,  irresponsible  recommendations, 
and  all  the  blandishments  of  office,  and  all  the  deaden- 
ing weight  of  silent  patronage.  The  executive  will 
never  be  compelled  to  avow,  or  to  support  any  opinions. 
His  ministers  may  conceal,  or  evade  any  expression  of 
their  opinions.  He  will  seem  to  follow,  when  in  fact 
he  directs,  the  opinions  of  congress.  He  will  assume 
the  air  of  a  dependent  instrument,  ready  to  adopt  the 
acts  of  the  legislature,  when  in  fact  his  spirit  and  his 
wishes  pervade  the  whole  system  of  legislation.  If 
corruption  ever  eats  its  way  silently  into  the  vitals  of 
this  republic,  it  will  be,  because  the  people  are  unable 
to  bring  responsibility  home  to  the  executive  through 


CH.  XII.]  PRIVILEGES  OF    CONGRESS.  313 

his  chosen  ministers.  They  will  be  betrayed,  when 
their  suspicions  are  most  lulled  by  the  executive,  under 
the  disguise  of  an  obedience  to  the  will  of  congress. 
If  it  would  not  have  been  safe  to  trust  the  heads  of  de- 
partments, as  representatives,  to  the  choice  of  the  peo- 
ple, as  their  constituents,  it  would  have  been  at  least 
some  gain  to  have  allowed  them  a  seat,  like  territorial 
delegates,  in  the  house  of  representatives,  where  they 
might  freely  debate  without  a  tide  to  vote.  In  such  an 
event,  their  influence,  whatever  it  would  be,  would  be 
seen,  and  felt,  and  understood,  and  on  that  account 
would  have  involved  httle  danger,  and  more  searching 
jealousy  and  opposition  ;  whereas,  it  is  now  secret  and 
silent,  and  from  that  very  cause  may  become  over- 
whelming. 

§  442.  One  other  reason  in  favour  of  such  a  right  is, 
that  it  would  com.pel  the  executive  to  make  appoint- 
ments for  the  high  departments  of  government,  not 
from  personal  or  party  favourites,  but  from  statesmen 
of  high  public  character,  talents,  experience,  and  ele- 
vated services  ;  from  statesmen,  who  had  earned  public 
favour,  and  could  command  public  confidence.  At  pres- 
ent, gross  incapacity  may  be  concealed  under  official 
forms,  and  ignorance  silently  escape  by  shifting  the  la- 
bours upon  more  intelligent  subordinates  in  office.  The 
nation  would  be,  on  the  other  plan,  better  served ;  and 
the  executive  sustained  by  more  masculine  eloquence, 
as  well  as  more  liberal  learning. 

§  443.  Such  is  the  reasoning,  by  which  many  en- 
lightened statesmen  have  not  only  been  led  to  doubt, 
but  even  to  deny  the  value  of  this  constitutional  dis- 
qualification. And  even  the  most  strenuous  advocates 
of  it  are  compelled  so  far  to  admit  its  force,  as  to  con- 
cede, that  the  measures  of  the  executive  government, 

Abr.  40 


314  COXSllltUOX  OF  THE  C.  STATES.     [BOOK  m. 

SO  fir  as  diej  M  whhin  tbe  immediate  dqpardnemt  of 
a  pailiciibr  officer,  mi^t  be  more  direcd j  and  Mtj 
rTphinrd  on  die  floor  of  die  house.  SdU,  howerer, 
die  leasonmg  from  die  Biidsh  pracdce  has  not  beoi 
deonedsatisbctofybj  diepdbfic;  and  die  guard  in- 
terposed bj  die  coQsdtQtion  has  been  leceiTed  widi 
general  approhadoo,  and  has  been  diought  to  haTe 
worked  well  dmii^  our  expoience  under  the  nation^ 
gorenment.  Indeed,  the  stauo^j  marked  parties  in 
the  Britidi  pMiimni^  and  their  consequent  dissensions, 
haTe  been  ascribed  to  the  non-esstence  of  anj  sadi 
lestraiats;  and  the  progress  of  the  infloenceof  the 
and  the  siqiposed  comytions  of  legpsJation,  hare 
bj  some  wiiiers  traced  Inck  to  the  sane  ongnai 
Whether  diese  infisrences  are  home  oat  b j 
bds,  is  a  matter,  opon  which  difierent  jodg- 
ij  anire  at  different  condnsions;  andawoik, 
ike  the  present  is  not  the  proper  pbce  to 


CH.  XUL]  mode  of  TASMtMQ  I^WS.  315 

CHAPTER  XnL 

MOD£  OF  PASSOTG   L^WS.      PmfSIDFST'S  XEG^TITE. 


§444  THBaefenAsecdonaTAefint 
of  two  important  sdbjects,  ifae 
Due  Uk,  aid  the  ntne  andexte^cf  tke 
aiegatiire  upon  Ifae  paasMg  of  tnwL 

§  445.    The  fast  daose  dedans— 'AM  Idb  fcr 
eTcnne  sfaol  ongpwtp  m  Ae  fao^e  of  icfse- 
itatires ;  bitf  dbe  aemaie  wbkj  propose^  or  txmcm 


so  far  as  it  regards  the  li^  to 
wicaMj  called  *iiioiiej  fa9s»"  is^  beroid  al 
borrowed  from  the  British  hoase  dloammtmat^ 
h  is  the  andent  and  MJapulaMe  pdili^c  aad 
diat  al  grants  of  sdhsiifaai  and  ^ptSamatarj  aida 
be^  in  dieir  hoose^  and  ave  fiist  beslapvedbf 
aldioi^ther  grants  are  not  i  ffulndtoalMlialii  and 
pmposesy  vntl  thej  have  de  aaaeat  of  Ae  other  two' 
brandies  of  the  h  gi  Jiiiai .  The  geniaal  reason  gpoi 
fir  dns  pririlege  of  Ae  hone  of  rf—ws  ia^  that  Ae 
siqiphesare  raised  upcn  thebodj  of  the  people;  and 
Aerefive  it  is  proper,  that  Aej  alone  Aoiid  hacre  Ae 
i^btof  tazi^  theuKrires.  And  Mr.  JiBdoe  Hack- 
stone  has  reiy  coirectfy  nmnlfd^  Aat  the 
would  be  nuBSwcnUe^  i  Ae 
but  themsdres.  But  it  is 
dare  of  propotT  b  in  possesaonof  Aelotds; 
propoty  is  eqraJhr  taxed,  as  Ae  propcrtj  of  Ae  cxna- 
moss;  and  thoefiwe  Ae  ooBBons^not  bcBgAesoie 
peraons  taxed.  As  cannot  be  Ae  reason  of  then' haling 
Ae  soteqBJht  of  laiahgaBdnwdfffcieAB  supply.  The 


316     CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

true  reason  seems  to  be  this.  The  lords  being  a  per- 
manent hereditary  body,  created  at  pleasure  by  the 
king,  are  supposed  more  liable  to  be  influenced  by  the 
crown,  and  when  once  influenced,  more  likely  to  con- 
tinue so,  than  the  commons,  who  are  a  temporary  elec- 
tive body,  freely  nominated  by  the  people.  It  would, 
therefore,  be  extremely  dangerous  to  give  the  lords  any 
power  of  framing  new  taxes  for  the  subject.  It  is  suffi- 
cient, that  they  have  a  power  of  rejecting,  if*  they 
think  the  commons  too  lavish  or  improvident  in  their 
grants. 

^  446.  It  will  be  at  once  perceived,  that  the  same 
reasons  do  not  exist  in  the  same  extent,  for  the  same 
exclusive  right  in  our  house  of  representatives  in  re- 
gard to  money  bills,  as  exist  for  such  right  in  the  Brit- 
ish house  of  commons.  It  may  be  fit,  that  it  should 
possess  the  exclusive  right  to  originate  money  bills ; 
since  it  may  be  presumed  to  possess  more  ample  means 
of  local  information,  and  it  more  directly  represents  the 
opinions,  feelings,  and  wishes  of  the  people.  And,  being 
directly  dependent  upon  them  for  support,  it  will  be 
more  watchful  and  cautious  in  the  imposition  of  taxes, 
than  a  body,  which  emanates  exclusively  from  the 
states  in  their  sovereign  political  capacity.  But,  as 
the  senators  are  in  a  just  sense  equally  representatives 
of  the  people,  and  do  not  hold  their  offices  by  a  per- 
manent or  hereditary  tide,  but  periodically  return  to  the 
common  mass  of  citizens ;  and  above  all,  as  direct 
taxes  are,  and  must  be,  apportioned  among  the  states 
according  to  their  federal  population ;  and  as  all  the 
states  have  a  distinct  local  interest,  both  as  to  the 
amount  and  nature  of  all  taxes  of  every  sort,  which  are 
to  be  levied,  there  seems  a  peculiar  fitness  in  giving  to 
the  senate  a  power  to  alter  and  amend,  as  well  as  to 


CH.  XIII.]         president's  negative.  317 

concur  with,  or  reject  all  money  bills.  The  due  influ- 
ence of  all  the  states  is  thus  preserved  ;  for  otherwise 
it  might  happen,  from  the  overwhelming  representation 
of  some  of  the  large  states,  that  taxes  might  be  levied, 
which  would  bear  with  pecuhar  severity  upon  the  in- 
terests, either  agricultural,  commercial,  or  manufactur- 
ing, of  others  being  the  minor  states ;  and  thus  the 
equilibrium  intended  by  the  constitution,  as  well  of 
power,  as  of  interest,  and  influence,  might  be  practically 
subverted. 

^  447.  There  would  also  be  no  small  inconvenience 
in  excluding  the  senate  from  the  exercise  of  this  power 
of  amendment  and  alteration  ;  since  if  any,  the  slightest 
modification  were  required  in  such  a  bill  to  make  it 
either  palatable  or  just,  the  senate  would  be  compelled 
to  reject  it,  although  an  amendment  of  a  single  hne 
might  make  it  entirely  acceptable  to  both  houses. 
Such  a  practical  obstruction  to  the  legislation  of  a  free 
government  would  far  outweigh  any  supposed  theoreti- 
cal advantages  from  the  possession  or  exercise  of  an 
exclusive  power  by  the  house  of  representatives.  In- 
finite perplexities,  and  misunderstandings,  and  delays 
would  clog  the  most  wholesome  legislation.  Even  the 
annual  appropriation  bills  might  be  in  danger  of  a  mis- 
carriage on  these  accounts ;  and  the  most  painful  dis- 
sensions might  be  introduced. 

^  448.  The  next  clause  respects  the  power  of  the 
president  to  approve,  and  negative  laws.  In  the  con- 
vention there  does  not  seem  to  have  been  much  diver- 
sity of  opinion  on  the  subject  of  the  propriety  of  giving 
to  the  president  a  negative  on  the  laws.  The  principal 
points  of  discussion  seem  to  have  been,  whether  the 
negative  should  be  absolute,  or  qualified ;  and  if  the 
latter,  by  what  number  of  each  house  the  bill  should  be 


318  CONSTITUTION  OF    THE  U.  STATES.    [bOOK  III. 

subsequently  passed,  in  order  to  become  a  law ;  and 
whether  the  negative  should  in  either  case  be  exclu- 
sively vested  in  the  president  alone,  or  in  him  jointly 
y     with  some  other  department  of  the  government. 

^  449.  Two  points  may  properly  arise  upon  this 
subject.  First,  the  propriety  of  vesting  the  power  in 
the  president ;  and  secondly,  the  extent  of  the  legisla- 
tive check,  to  prevent  an  undue  exercise  of  it.  The 
former  also  admits  of  a  double  aspect,  viz.  whether  the 
negative  should  be  absolute,  or  should  be  qualified. 
An  absolute  negative  on  the  legislature  appears,  at 
first,  to  be  the  natural  defence,  with  which  the  execu- 
tive magistrate  should  be  armed.  But  in  a  free  gov- 
ernment, it  seems  not  altogether  safe,  nor  of  itself  a 
sufliicient  defence.  On  ordinary  occasions,  it  may  not 
be  exerted  with  the  requisite  firmness ;  and  on  extra- 
ordinary occasions,  it  may  be  perfidiously  abused.  It 
is  true,  that  the  defect  of  such  an  absolute  negative  has 
a  tendency  to  weaken  the  executive  department.  But 
this  may  be  obviated,  or  at  least  counterpoised,  by  oth- 
er arrangements  in  the  government ;  such  as  a  qualified 
connexion  with  the  senate  in  making  treaties  and  ap- 
pointments, by  which  the  latter,  being  a  stronger  de- 
partment, may  be  led  to  support  the  constitutional  rights 
of  the  former,  without  being  too  much  detached  from 
its  own  legislative  functions.  And  the  patronage  of  the 
executive  has  also  some  tendency  to  create  a  counter- 
acting influence  in  aid  of  his  independence.  It  is  true, 
that  in  England  an  absolute  negative  is  vested  in  the 
king,  as  a  branch  of  the  legislative  power ;  and  he  pos- 
sesses the  absolute  power  of  rejecting,  rather  than 
of  resolving.  And  this  is  thought  by  Mr.  Justice  Black- 
stone  and  others,  to  be  a  most  important,  and  indeed 
indispensable  part  of  the  royal  prerogative,  to  guard  it 


CH.  XIII.]         president's  negative.  315 

against   the   usurpations   of  the   legislative   authority. 
Yet  in  point  of  fact  this  negative  of  the  king  has  not 
been  once  exercised  since  the  year  1692  ;  a  fact,  which 
can  only  be  accounted  for  upon  one  of  two  supposi- 
tions, either  that  the  influence  of  the  crown  has  prevent- 
ed the  passage  of  objectionable  measures,  or  that  the 
exercise  of  the  prerogative  has  become  so  odious,  that 
it  has  not  been  deemed  safe  to  exercise  it,  except  upon 
the  most  pressing  emergencies.      Probably  both  mo- 
tives have  alternately  prevailed  in  regard  to  bills,  which 
were  disagreeable  to  the  crown ;   though,  for  the  last 
half  century,  the  latter  has  had  the  most  uniform  and 
decisive  operation.     As  the  house  of  commons  becomes 
more  and  more  the  representative  of  the  popular  opin- 
ion, the  crown  will  have  less  and  less  inducement  to 
hazard  its  own  influence  by  a  rejection  of  any  favourite 
measure  of  the  people.     It  will  be  more  likely  to  take 
the  lead,  and  thus  guide  and  moderate,  instead  of  re- 
sisting the  commons.      And,  practically  speaking,  it  is 
quite  problematical,  whether  a  qualified  negative  may 
not  hereafter  in  England  become  a  more  efficient  pro- 
tection of  the  crown,  than  an  absolute  negative,  which 
makes  no  appeal  to  the  other  legislative  bodies,  and 
consequently  compels  the  crown  to  bear  the  exclusive 
odium  of  a  rejection.      Be  this  as  it  may,  the  example 
of  England  furnishes,  on  this  point,  no  sufl[icient  author- 
ity for  America.     The  whole  structure  of  our  govern- 
ment is  so  entirely  different,  and  the  elements,  of  which 
it  is  composed,  are  so  dissimilar  from  that  of  England, 
that  no  argument  can  be  drawn  from  the  practice  of  the 
latter,  to  assist  us  in  a  just  arrangement  of  the  execu- 
tive authority. 

^  450.  The  reasons,  why  the  president  should  pos- 
sess a  qualified  negative,  if  they  are  not  quite  obvious, 


320  CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 

are,  at  least,  when  fairly  expounded,  entirely  satisfac- 
tory. In  the  first  place,  there  is  a  natural  tendency  in 
the  legislative  department  to  intrude  upon  the  rights, 
and  to  absorb  the  powers  of  the  other  departments  of 
government.  A  mere  parchment  delineation  of  the 
boundaries  of  each  is  wholly  insufficient  for  the  pro- 
tection of  the  weaker  branch,  as  the  executive  unques- 
tionably is ;  and  hence  there  arises  a  constitutional 
necessity  of  arming  it  with  powers  for  its  own  defence. 
If  the  executive  did  not  possess  this  qualified  nega- 
tive, he  would  gradually  be  stripped  of  all  his  authority, 
and  become,  what  it  is  well .  known  the  governors  of 
some  states  are,  a  mere  pageant  and  shadow  of  magis- 
trac}'. 

§  451.  In  the  next  place,  the  power  is  important,  as 
an  additional  security  against  the  enactment  of  rash, 
immature,  and  improper  laws.  It  establishes  a  saluta- 
ry check  upon  the  legislative  body,  calculated  to  pre- 
serve the  community  against  the  effects  of  faction, 
precipitancy,  unconstitutional  legislation,  and  tempora- 
ry excitements,  as  well  as  political  hostility.  It  may, 
indeed,  be  said,  that  a  single  man,  even  though  he  be 
president,  cannot  be  presumed  to  possess  more  wis- 
dom, or  virtue,  or  experience,  than  what  belongs  to  a 
number  of  men.  But  this  furnishes  no^  answer  to  the 
reasoning.  The  question  is  not,  how  much  wisdom,  or 
virtue,  or  experience,  is  possessed  by  either  branch  of 
the  government,  (though  the  executive  magistrate  may 
well  be  presumed  to  be  eminently  distinguished  in  all 
these  respects,  and  therefore  the  choice  of  the  people  ;) 
but  whether  the  legislature  may  not  be  misled  by  a 
love  of  power,  a  spirit  of  faction,  a  political  impulse,  or 
a  persuasive  influence,  local  or  sectional,  which,  at  the 
same  time,  may  not,  from  the  difference  in  the  election 


CH.  XIII.]  president's  negative.  321 

and  duties  of  the  executive,  reach  him  at  all,  or  not 
reach  him  in  the  same  degree.  He  will  always  have  a 
primary  inducement  to  defend  his  own  powers ;  the 
legislature  may  w^ell  be  presumed  to  have  no  desire 
to  favour  them.  He  will  have  an  opportunity  soberly 
to  examine  the  acts  and  resolutions  passed  by  the  legis- 
lature, not  having  partaken  of  the  feehngs  or  combina- 
tions, which  have  procured  their  passage,  and  thus 
to  correct,  what  will  sometimes  be  wrong  from  haste  and 
inadvertence,  as  w-ell  as  design.  His  view  of  them,  if 
not  more  wise,  or  more  elevated,  will,  at  least,  be  inde- 
pendent, and  under  an  entirely  different  responsibility 
to  the  nation,  from  what  belongs  to  them.  He  is  the 
representative  of  the  whole  nation  in  the  aggregate ; 
they  are  the  representatives  only  of  distinct  parts  ; 
and  sometimes  of  httle  more  than  sectional  or  local  in- 
terests. 

§  452.  Nor  is  there  any  solid  objection  to  this  quali- 
fied power.  If  it  should  be  objected,  that  it  may  some- 
times prevent  the  passage  of  good  laws,  as  w^ell  as  of 
bad  laws,  the  objection  is  entided  to  but  Httle  weight. 
In  the  first  place,  it  can  never  be  effectually  exercised 
if  two  thirds  of  both  houses  are  in  favour  of  the  law ;  and 
if  they  are  not,  it  is  not  so  easily  demonstrable,  that 
the  law  is  either  wise  or  salutary.  The  presumption 
would  rather  be  the  other  w^ay  ;  or,  at  least,  that  the 
utility  of  it  is  not  unquestionable,  or  it  would  receive 
the  requisite  support.  In  the  next  place,  the  great  evil 
of  all  free  governments  is  a  tendency  to  over-legislation  ; 
and  the  mischief  of  inconstancy  and  mutability  in  the 
laws  forms  a  great  blemish  in  the  character  and  genius 
of  all  free  governments.  The  injury,  w^hich  may  pos- 
sibly arise  from  the  postponement  of  a  salutary  law, 
is  far  less,  than  from  the  passage  of  a  mischievous  one, 

Abr.  41 


322         CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

or  from  a  redundant  and  vacillating  legislation.  In  the 
next  place,  there  is  no  practical  danger,  that  this  power 
will  be  much,  if  any,  abused  by  the  president.  The 
superior  weight  and  influence  of  the  legislative  body  in 
a  free  government,  and  the  hazard  to  the  weight  and 
influence  of  the  executive  in  a  trial  of  strength,  afford  a 
satisfactory  security^  that  the  power  will  generally  be 
employed  with  great  caution  ;  and  that  there  will  be 
more  often  room  for  a  charge  of  timidity,  than  of  rash-- 
ness  in  its  exercise.  It  has  been  already  seen,  that  the 
British  king,  with  all  his  sovereign  attributes,  has  rarely 
interposed  this  high  prerogative,  and  that  more  than 
a  century  has  elapsed  since  its  actual  application.  If 
from  the  offensive  nature  of  the  power  a  royal  he- 
reditary executive  thus  indulges  serious  scruples  in  its 
actual  exercise,  surely  a  republican  president,  chosen 
for  four  years,  may  be  presumed  to  be  still  more  un- 
willing to  exert  it. 

§  453.  It  has  this  additional  recommendation,  as  a 
quaHfied  negative,  that  it  does  not,  like  an  absolute  neg- 
ative, present  a  categorical  and  harsh  resistance  to  the 
legislative  will,  which  is  so  apt  to  engender  strife,  and 
nourish  hostility.  It  assumes  the  character  of  a  mere 
appeal  to  the  legislature  itself,  and  asks  a  revision  of  its 
own  judgment.  It  is  in  the  nature,  then,  merely  of  a 
rehearing,  or  a  reconsideration,  and  involves  nothing  to 
provoke  resentment,  or  rouse  pride.  A  president,  who 
might  hesitate  to  defeat  a  law  by  an  absolute  veto, 
might  feel  little  scruple  to  return  it  for  reconsideration 
upon  reasons  and  arguments  suggested  on  the  return. 
If  these  were  satisfactory  to  the  legislature,  he  would 
have  the  cheering  support  of  a  respectable  portion  of 
the  body  in  justification  of  his  conduct.  If,  on  the  other 
hand,  they  should  not  be  satisfactory,  the  concurrence 


CH.  XIII.]         president's  negative.  323 

of  two  thirds  would  secure  the  ultimate  passage  of  the 
law,  without  exposing  him  to  undue  censure  or  re- 
proach. Even  in  such  cases  his  opposition  would  not 
be  without  some  benefit.  His'  observations  would  be 
calculated  to  excite  public  attention  and  discussion,  to 
lay  bare  the  grounds,  and  policy,  and  constitutionahty 
of  measures ;  and  to  create  a  continued  watchfulness,  as 
to  the  practical  effects  of  the  laws  thus  passed,  so  as 
that  it  might  be  ascertained  by  experience,  whether  his 

.  sagacity  and  judgment  were  safer,  than  those  of  the  leg- 
islature. Nothing  but  a  gross  abuse  of  the  power  upon 
frivolous,  or  party  pretences,  to  secure  a  petty  triumph, 
or  to  defeat  a  wholesome  restraint,  would  bring  it  into 
contempt,  or  odium.  And  then,  it  would  soon  be  follow- 
ed by  that  remedial  justice  from  the  people,  in  the  ex- 
ercise of  the  right  of  election,  which,  first  or  last,  will 
be  found  to  follow  with  reproof,  or  cheer  with  applause, 
the  acts  of  their  rulers,  when  passion  and  prejudice 
have  removed  the  temporary  bandages,  which  have 
bhnded  their  judgment. 

§  454.  The  other  point  of  inquiry  is,  as  to  the  extent 
of  the  legislative  check  upon  the  negative  of  the  execu- 
tive. It  was  originally  proposed,  that  a  concurrence  of 
two  thirds  of  each  house  should  be  required ;  this 
was  subsequently  altered  to  three  fourths ;  and  was 
finally  brought  back  again  to  the  original  number.  One 
reason  against  the  three  fourths  seems  to  have  been, 
that  it  would  afford  little  security  for  any  effectual  ex- 
ercise of  the  power.     The  larger  the  number  required 

.  to  overrule  the  executive  negative,  the  more  easy  it 
would  be  for  him  to  exert  a  silent  and  secret  influence 
to  detach  the  requisite  number  in  order  to  carry  his 
object.  Another  reason  was,  that  even,  supposing  no 
such  influence  to  he  exerted,  still,  in  a  great  variety  of 


324  CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

cases  of  a  political  nature,  and  especially  such,  as  touch- 
ed local  or  sectional  interests,  the  pride  or  the  power  of 
states,  it  would  be  easy  to  defeat  the  most  salutary 
measures,  if  a  combination  of  a  kw  states  could  produce 
such  a  result.  And  the  executive  himself  might,  from 
his  local  attachments  or  sectional  feelings,  partake  of 
this  common  bias.  In  addition  to  this,  the  departure 
from  the  general  rule,  of  the  right  of  a  majority  to  gov- 
ern, ought  not  to  be  allowed  but  upon  the  most  urgent 
occasions.  And  an  expression  of  opinion  by  two  thirds 
of  both  houses  in  favour  of  a  measure  certainly  affords 
all  the  just  securities,  which  any  wise,  or  prudent  peo- 
ple ought  to  demand  in  the  ordinary  course  of  legisla- 
tion ;  for  all  laws  thus  passed  may,  at  any  time,  be 
repealed  at  the  mere  will  of  the  majority.  It  was  also 
no  small  recommendation  of  the  lesser  number,  that  it 
offered  fewer  inducements  to  improper  combinations, 
either  of  the  great  states,  or  the  small  states,  to  accom- 
plish particular  objects.  There  could  be  but  one  of 
two  rules  adopted  in  all  governments,  either,  that  the 
majority  should  govern,  or  the  minority  should  govern. 
The  president  might  be  chosen  by  a  bare  majority  of 
electoral  votes,  and  this  majority  might  be  by  the  com- 
bination of  a  few  large  states,  and  by  a  minority  of  the 
whole  people.  Under  such  circumstances,  if  a  vote  of 
three  fourths  were  required  to  pass  a  law,  the  voice  of 
two  thirds  of  the  people  might  be  permanently  disre- 
garded during  a  whole  administration.  The  case  put 
may  seem  strong ;  but  it  is  not  stronger,  than  the  sup- 
position, that  two  thirds  of  both  houses  would  be  found 
ready  to  betray  the  sohd  interests  of  their  constituents 
by  the  passage  of  injurious  or  unconstitutional  laws. 
The  provision,  therefore,  as  it  stands,  affords  all  reason- 
able security ;    and  pressed  farther,  it  would  endanger 


CH.  XIII.]  MODE  OF  PASSING  LAWS.  325 

the  very  objects,  for  which  it  is  introduced  into  the 
constitution. 

§  455.  But  the  president  might  effectually  defeat  the 
wholesome  restraint,  thus  intended,  upon  his  qualified 
negative,  if  he  might  silently  decline  to  act,  after  a  bill 
was  presented  to  him  for  approval  or  rejection.  The 
constitution,  therefore,  has  wisely  provided,  that  "if any 
"  bill  shall  not  he  returned  by  the  president  within  ten 
"  days  (Sundays  excepted)  after  it  shall  have  been  pre- 
"  sented  to  him,  it  shall  be  a  law,  in  like  manner,  as  if 
"  he  had  signed  it."  But  if  this  clause  stood  alone, 
congress  might,  in  like  manner,  defeat  the  due  exer- 
cise of  his  qualified  negative  by  a  termination  of  the 
session,  which  would  render  it  impossible  for  the  presi- 
dent to  return  the  bill.  It  is  therefore  added,  "  unless 
"  the  congress,  by  their  adjournment,  prevent  its  return, 
"  in  which  case  it  shall  not  be  a  law." 

^  456.  The  remaining  clause  merely  applies  to  or- 
ders, resolutions,  and  votes,  to  which  the  concurrence 
of  both  houses  may  be  necessary  ;  and  as  to  these,  with 
a  single  exception,  the  same  rule  is  applied,  as  is  by  the 
preceding  clause  applied  to  hills.  If  this  provision  had 
not  been  made,  congress,  by  adopting  the  form  of  an 
order  or  resolution-,  instead  of  a  bill,  might  have  effec- 
tually defeated  the  president's  qualified  negative  in  all 
the  most  important  portions  of  legislation. 

^  457.  A  review  of  the  forms  and  m.odes  of  pro- 
ceeding in  the  passing  of  laws  cannot  fail  to  impress 
upon  every  mind  the  cautious  steps,  by  which  legisla- 
tion is  guarded,  and  the  solicitude  to  conduct  business 
without  precipitancy,  rashness,  or  irregularity.  Fre- 
quent opportunities  are  afforded  to  each  house  to  re- 
view their  own  proceedings  ;  to  amend  their  own  er- 
rors ;    to  correct  their  own  inadvertences ;   to  recover 


326  CONSTITUTION  OF  THE  U.  STATES.     [bOOK  III. 

from  the  results  of  any  passionate  excitement ;  and  to 
reconsider  the  votes,  to  which  persuasive  eloquence,  or 
party  spirit,  has  occasionally  misled  their  judgments. 
Under  such  circumstances,  if  legislation  be  unwise,  or 
loose,  or  inaccurate,  it  belongs  to  the  infirmity  of  hu- 
man nature  in  general,  or  to  that  personal  carelessness 
and  indifference,  which  is  sometimes  the  foible  of 
genius,  as  well  as  the  accompaniment  of  ignorance  and 
prejudice. 

^  458.  The  structure  and  organization  of  the  several 
branches,  composing  the  legislature,  have  also  (unless 
my  judgment  has  misled  me)  been  shown  by  the  past 
review  to  be  admirably  adapted  to  preserve  a  whole- 
some and  upright  exercise  of  their  powers.  All  the 
checks,  which  human  ingenuity  has  been  able  to  devise, 
(at  least  all,  which,  with  reference  to  our  habits,  insti- 
tutions, and  local  interests,  seem  practicable,  or  de- 
sirable,) to  give  perfect  operation  to  the  machinery 
of  government ;  to  adjust  all  its  movements  ;  to  prevent 
its  eccentricities ;  and  to  balance  its  forces  ;  —  all  these 
have  been  introduced,  with  singular  skill,  ingenuity,  and 
wisdom,  into  the  structure  of  the  constitution. 

^  459.  Yet,  after  all,  the  fabric  may  fall;  for  the 
work  of  man  is  perishable,  and  must  for  ever  have  in- 
herent elements  of  decay.  Nay ;  it  must  perish,  if 
there  be  not  that  vital  spirit  in  the  people,  which  alone 
can  nourish,  sustain,  and  direct  all  its  movements.  It 
will  be  in  vain,  that  statesmen  shall  form  plans  of  govern- 
ment, in  w^hich  the  beauty  and  harmony  of  a  republic 
shall  be  embodied  in  visible  order,  shall  be  built  up  on 
solid  substructions,  and  adorned  by  every  useful  orna- 
ment, if  the  inhabitants  suffer  the  silent  power  of  time 
to  dilapidate  its  walls,  or  crumble  its  massy  supporters 
into  dust ;  if  the  assaults  from  without  are  never  resist- 


CH.  XIII.]  MODE  OF  PASSING  LAWS.  327 

ed,  and  the  rottenness  and  mining  from  within  are  never 
guarded  against.  Who  can  preserve  the  rights  and 
hberties  of  the  people,  when  they  are  abandoned 
by  themselves  1  Who  shall  keep  watch  in  the  temple, 
when  the  watchmen  sleep  at  their  posts  ?  Who  shall 
call  upon  the  people  to  redeem  their  possessions,  and 
revive  the  republic,  when  their  own  hands  have  delibe- 
rately and  corrupdy  surrendered  them  to  the  oppressor, 
and  have  built  the  prisons,  or  dug  the  graves  of  their 
own  friends  ?  Aristotle,  in  ancient  times,  upon  a  large 
survey  of  the  repubUcs  of  former  days,  and  of  the  fa- 
cile manner,  in  which  they  had  been  made  the  instru- 
ments of  their  own  destruction,  felt  himself  compelled  to 
the  melancholy  reflection,  which  has  been  painfully  re- 
peated by  one  of  the  greatest  statesmen  of  modern 
times,  that  a  democracy  has  many  striking  points  of  re- 
semblance with  a  tyranny.  "  The  ethical  character," 
says  he,  "  is  the  same ;  both  exercise  despotism  over  the 
better  class  of  citizens  ;  and  the  decrees  are  in  the  one, 
w^hat  ordinances  and  arrets  are  in  the  other.  The 
demagogue^  too,  and  the  court  favourite  are  not  unfre- 
quently  the  same  identical  men,  and  always  bear  a  close 
analogy.  And  these  have  the  principal  power,  each  in 
their  respective  governments,  favourites  with  the  abso- 
lute monarch,  and  demagogues  with  a  people,  such  as  I 
have  described." 

^  460.  This  dark  picture,  it  is  to  be  hoped,  will 
never  be  applicable  to  the  republic  of  America.  And 
yet  it  affords  a  warning,  which,  like  all  the  lessons  of 
past  experience,  v:e  are  not  permitted  to  disregard. 
America,  free,  happy,  and  enhghtened,  as  she  is,  must 
rest  the  preservation  of  her  rights  and  liberties  upon 
the  virtue,  independence,  justice,  and  sagacity  of  the 
people.    If  either  fail,  the  republic  is  gone.     Its  shad- 


328     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

ow  may  remain  with  all  the  pomp,  and  circumstance, 
and  trickery  of  government ;  but  its  vital  power  will 
have  departed.  In  America,  the  demagogue  may  arise, 
as  well  as  elsewhere.  He  is  the  natural,  though  spuri- 
ous growth  of  republics  ;  and  hke  the  courtier  he  may, 
by  his  blandishments,- delude  the  ears,  and  blind  the 
eyes  of  the  people  to  their  own  destruction.  If  ever 
the  day  shall  arrive,  in  which  the  best  talents  and  the 
best  virtues  shall  be  driven  from  office  by  intrigue  or 
corruption,  by  the  ostracism  of  the  press,  or  the  still 
more  unrelenting  persecution  of  party,  legislation  will 
cease  to  be  national.  It  will  be  wise  by  accident,  and 
bad  by  system. 


CH.  XIV.]  POWERS    OF    CONGRESS.  329 

CHAPTER  XIV. 

POWERS    OF    CONGRESS. 

^461.  We  have  now  arrived,  in  the  course  of  our 
inquiries,  at  the  eighth  section  of  the  first  article  of  the 
constitution,  which  contains  an  enumeration  of  the 
principal  powers  of  legislation  confided  to  congress. 
A  consideration  of  this  most  important  subject  will 
detain  our  attention  for  a  considerable  time  ;  as  well, 
because  of  the  variety  of  topics,  which  it  embraces, 
as  of  the  controversies,  and  discussions,  to  which  it 
has  given  rise.  It  has  been,  in  the  past  time,  it  is  in 
the  present  time,  and  it  will  probably  in  all  future 
time  continue  to  be,  the  debateable  ground  of  the 
constitution,  signalized,  at  once,  by  the  victories,  and 
the  defeats  of  the  same  parties. 

§  462.  The  first  clause  of  the  eighth  section  is  in 
the  following  words  :  "  The  congress  shall  have  power 
"  to  lay  and  collect  taxes,  duties,  imposts,  and  excises, 
"  to  pay  the  debts  and  provide  for  the  common  defence, 
"  and  general  welfare  of  the  United  States  ;  but  all 
*'  duties,  imposts,  and  excises,  shall  be  uniform  through- 
"  out  the  United  States." 

^  463.  Before  proceeding  to  consider  the  nature  and 
extent  of  the  power  conferred  by  this  clause,  and  the 
reasons,  on  which  it  is  founded,  it  seems  necessary  to 
settle  the  grammatical  construction  of  the  clause,  and 
to  ascertain  its  true  reading.  Do  the  words,  "  to  lay 
and  collect  taxes,  duties,  imposts,  and  excises,"  con- 
stitute a  distinct,  substantial  power  ;  and  the  words, 
*'  to  pay  debts,  and  provide  for  the  common  defence, 
"  and  general  welfare  of  the  United  States,"  constitute 

Abr.  42 


330  CONSTITUTION    OF    THE    U.    STATES.      [bOOK  III. 

another  distinct  and  substantial  power  ?  Or  are  the 
latter  words  connected  with  the  former,  so  as  to  con- 
stitute a  qualification  upon  them  ?  This  has  been  a 
topic  of  political  controversy  ;  and  has  furnished  abun- 
dant materials  for  popular  declamation  and  alarm.  If 
the  former  be  the  true  interpretation,  then  it  is  obvious, 
that  under  colour  of  the  generality  of  the  words  to 
"  provide  for  the  common  defence  and  general  wel- 
fare," the  government  of  the  United  States  is,  in  re- 
ality, a  government  of  general  and  unlimited  powers, 
notwithstanding  the  subsequent  enumeration  of  specific 
powers  ;  if  the  latter  be  the  true  construction,  then 
the  power  of  taxation  only  is  given  by  the  clause,  and 
it  is  limited  to  objects  of  a  national  character,  "  for 
"  the  common  defence  and  the  general  welfare." 

^  464.  The  former  opinion  has  been  maintained  by 
some  minds  of  great  ingenuity,  and  liberality  of  views. 
The  latter  has  been  the  generally  received  sense  of 
the  nation,  and  seems  supported  by  reasoning  at  once 
solid  and  impregnable.  The  reading,  therefore,  which 
will  be  maintained  in  these  commentaries,  is  that, 
which  makes  the  latter  words  a  qualification  of  the 
former ;  and  this  will  be  best  illustrated  by  sup- 
plying the  words,  which  are  necessarily  to  be  under- 
stood in  this  interpretation.  They  will  then  stand 
thus  :  "  The  congress  shall  have  power  to  lay  and 
''  collect  taxes,  duties,  imposts,  and  excises,  in  order 
"  to  pay  the  debts,  and  to  provide  for  the  common 
"  defence  and  general  welfare  of  the  United  States  ;" 
that  is,  for  the  purpose  of  paying  the  public  debts,  and 
providing  for  the  common  defence  and  general  welfare 
of  the  United  States.  In  this  sense,  congress  has  not 
an  unlimited  power  of  taxation ;  but  it  is  limited  to 
specific  objects,  —  the  payment  of  the  public  debts, 


CH.  XIV.]     POWERS    OF    CONGRESS TAXES.  331 

and  providing  for  the  common  defence  and  general 
welfare.  A  tax,  therefore,  laid  by  congress  for  neither 
of  these  objects,  would  be  unconstitutional,  as  an  ex- 
cess of  its  legislative  authority.  In  what  manner  this 
is  to  be  ascertained,  or  decided,  will  be  considered 
hereafter.  At  present,  the  interpretation  of  the  words 
only  is  before  us. 

^  465.  Having  thus  disposed  of  the  question,  what 
is  the  true  interpretation  of  the  clause,  as  it  stands  in 
the  text  of  the  constitution,  and  ascertained,  that  the 
power  of  taxation,  though  general,  as  to  the  subjects, 
to  which  it  may  be  applied,  is  yet  restrictive,  as  to 
the  purposes,  for  which  it  may  be  exercised  ;  it  next 
becomes  matter  of  inquiry,  what  were  the  reasons,  for 
which  this  power  was  given,  and  what  were  the  ob- 
jections, to  which  it  was  deemed  liable. 

^  466.  That  the  power  of  taxation  should  be,  to 
some  extent,  vested  in  the  national  government,  was 
admitted  by  all  persons,  who  sincerely  desired  to  escape 
from  the  imbecilities,  as  well  as  the  inequalities  of  the 
confederation.  Without  such  a  power  it  would  not 
be  possible  to  provide  for  the  support  of  the  national 
forces  by  land  or  sea,  or  the  national  civil  list,  or  the 
ordinary  charges  and  expenses  of  government.  For 
these  purposes  at  least,  there  must  be  a  constant  and 
regular  supply  of  revenue.  If  there  should  be  a  defi- 
ciency, one  of  two  evils  must  inevitably  ensue  ;  either 
the  people  must  be  subjected  to  continual  arbitrary 
plunder  ;  or  the  government  must  sink  into  a  fatal 
atrophy.  The  former  is  the  fate  of  Turkey  under 
its  sovereigns  :  the  latter  was  the  fate  of  America 
under  the  confederation. 

^  467.  If,  then,  there  is  to  be  a  real,  effective  na- 
tional government,  there  must  be  a  power  of  taxation 


332     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

co-extensive  with  its  powers,  wants,  and  duties.  The 
only  inquiry  properly  remaining  is,  whether  the  resour- 
ces of  taxation  should  be  specified  and  limited  ;  or, 
whether  the  power  in  this  respect  should  be  general, 
leaving  a  full  choice  to  the  national  legislature.  The 
opponents  of  the  constitution  strenuously  contended, 
that  the  power  should  be  restricted  ;  its  friends,  as 
strenuously  contended,  that  it  was  indispensable  for 
the  public  safety,  that  it  should  be  general. 

^  468.  The  general  reasoning,  by  which  an  unlim- 
ited power  was  sustained,  was  to  the  following  effect. 
Every  government  ought  to  contain  within  itself  every 
power  requisite  to  the  full  accomplishment  of  the  ob- 
jects committed  to  its  care,  and  the  complete  execu- 
tion of  the  trusts,  for  which  it  is  responsible,  free  from 
every  other  control,  but  a  regard  to  the  public  good, 
and  to  the  security  of  the  people.  In  other  words, 
every  power  ought  to  be  proportionate  to  its  object. 
The  duties  of  superintending  the  national  defence,  and 
of  securing  the  public  peace  against  foreign  or  domes- 
tic violence,  involve  a  provision  for  casualties  and  dan- 
gers, to  which  no  possible  limits  can  be  assigned  ;  and 
therefore  the  power  of  making  that  provision  ought 
to  know  no  other  bounds,  than  the  exigencies  of  the 
nation,  and  the  resources  of  the  community.  Revenue 
is  the  essential  engine,  by  which  the  means  of  answer- 
ing the  national  exigencies  must  be  procured  ;  and 
therefore  the  power  of  procuring  it  must  necessarily 
be  comprehended  in  that  of  providing  for  those  exi- 
gencies. Theory,  as  well  as  practice,  the  past  expe- 
rience of  other  nations,  as  well  as  our  own  sad  expe- 
rience under  the  confederation,  conspire  to  prove,  that 
the  power  of  procuring  revenue  is  unavailing,  and  a 
mere   mockery,  when  exercised  over  states  in  their 


CH.  XIV.]     POWERS    OF    CONGRESS TAXES.  333 

collective  capacities.  If,  therefore,  the  federal  gov- 
ernment v^as  to  be  of  any  efficiency,  and  a  bond  of 
union,  it  ought  to  be  invested  with  an  unqualified 
power  of  taxation  for  all  national  purposes.  In  the 
history  of  mankind  it  has  ordinarily  been  found,  that 
in  the  usual  progress  of  things  the  necessities  of  a  na- 
tion in  every  stage  of  its  existence  are  at  least  equal 
to  its  resources.  But,  if  a  more  favourable  state  of 
things  should  exist  in  our  own  government,  still  we 
must  expect  reverses,  and  ought  to  provide  against 
them.  It  is  impossible  to  foresee  all  the  various 
changes  in  the  posture,  relations,  and  power  of  differ- 
ent nations,  which  may  affect  the  prosperity  and 
safety  of  our  own.  We  may  have  formidable  foreign 
enemies.  We  may  have  internal  commotions.  We 
may  suffer  from  physical,  as  well  as  moral  calamities  ; 
from  plagues,  famine,  and  earthquakes  ;  from  political 
convulsions,  and  rivalries ;  from  the  gradual  decline  of 
particular  sources  of  industry ;  and  from  the  necessity 
of  changing  our  own  habits  and  pursuits,  in  conse- 
quence of  foreign  improvements  and  competitions,  and 
the  variable  nature  of  human  wants  and  desires.  A 
source  of  revenue,  adequate  in  one  age,  may  wholly 
or  partially  fail  in  another.  Commerce,  or  manufac- 
tures, or  agriculture  may  thrive  under  a  tax  in  one 
age,  which  would  destroy  them  in  another.  The 
power  of  taxation,  therefore,  to  be  useful,  must  not 
only  be  adequate  to  all  the  exigencies  of  the  nation, 
but  it  must  be  capable  of  reaching  from  time  to  time 
all  the  most  productive  sources.  It  has  been  observed 
with  no  less  truth,  than  point,  that  ''  in  political  arith- 
metic two  and  two  do  not  always  make  four."  Con- 
stitutions of  government  are  not  to  be  framed  upon  a 
calculation  of  existing  exigencies  ;  but  upon  a  combi- 


334     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

nation  of  these  with  the  probable  exigencies  of  ages, 
according  to  the  natural  and  tried  course  of  human 
affairs.  There  ought  to  be  a  capacity  to  provide  for 
future  contingencies,  as  they  may  happen ;  and  as  these 
are  (as  has  been  already  suggested)  illimitable  in  their 
nature,  so  it  is  impossible  safely  to  limit  that  capacity. 
^  469.  In  regard  to  other  objections  it  was  urged, 
that  it  was  impossible  to  rely  (as  the  history  of  the  gov- 
ernment under  the  confederation  abundantly  proved) 
upon  requisitions  upon  the  states.  Direct  taxes  were 
exceedingly  unequal,  and  difficult  to  adjust ;  and  could 
not  safely  be  relied  on,  as  an  adequate  or  satisfactory 
source  of  revenue,  except  as  a  final  resort,  when  others, 
more  eligible,  failed.  The  distinction  between  external 
and  internal  taxation  was  indeed  capable  of  being  re- 
duced to  practice.  But  in  many  emergencies  it  might 
leave  the  national  government  without  any  adequate 
resources,  and  (compel  it  to  a  course  of  taxation  ruinous 
to  our  trade  and  industry,  and  the  solid  interests  of  the 
country.  No  one  of  due  reflection  can  contend,  that 
commercial  iuiports  are,  or  could  be,  equal  to  all  future 
exigencies  of  the  Union  ;  and  indeed  ordinarily  they 
may  not  be  found  equal  to  them.  Suppose  they  are 
equal  to  the  ordinary  expenses  of  the  Union  ;  yet,  if 
war  should  come,  the  civil  list  must  be  entirely  over- 
looked, or  the  military  left  without  any  adequate  sup- 
ply. How  is  it  possible,  that  a  government  half  sup- 
plied and  half  necessitous  can  fulfil  the  purposes  of  its 
institution,  or  can  provide  for  the  security,  advance 
the  prosperity,  or  support  the  reputation  of  the  com- 
monwealth ?  How  can  it  ever  possess  either  energy 
or  stability,  dignity  or  credit,  confidence  at  home,  or 
respectability  abroad  ?  How  can  its  administration 
be  any  thing  else,  than   a  succession  of  expedients, 


CH.  XIV.]     POWERS    OF    CONGRESS TAXES.  335 

temporary,  impotent,  and  disgraceful  ?  How  will  it 
be  able  to  avoid  a  frequent  sacrifice  of  its  engagements 
to  immediate  necessity  ?  How  can  it  undertake,  or 
execute  any  liberal  or  enlarged  plans  of  public  good  ? 
Who  would  lend  to  a  government,  incapable  of  pledg- 
ing any  permanent  resources  to  redeem  its  debts  ?  It 
would  be  the  common  case  of  needy  individuals,  who 
must  borrow  upon  onerous  conditions  and  usury,  be- 
cause they  cannot  promise  a  punctilious  discharge  of 
their  engagements.  It  would,  therefore,  not  only  not 
be  wise,  but  be  the  extreme  of  folly  to  stop  short  of 
adequate  resources  for  all  emergencies,  and  to  leave 
the  government  entrusted  w^ith  the  care  of  the  national 
defence  in  a  state  of  total,  or  partial  incapacity  to  pro- 
vide for  the  protection  of  the  community  against  future 
invasions  of  the  public  peace  by  foreign  war,  or  do- 
mestic convulsions.  If,  indeed,  we  are  to  try  the  novel, 
not  to  say  absurd,  experiment  in  politics,  of  tying  up 
the  hands  of  government  from  protective  and  offensive 
war,  founded  upon  reasons  of  state,  we  ought  certainly 
to  be  able  to  compel  foreign  nations  to  abstain  from 
all  measures,  which  shall  injure,  or  cripple  us.  We 
must  be  able  to  repress  their  ambition,  and  disarm 
their  enmity  ;  to  conquer  their  prejudices,  and  destroy 
their  rivalries  and  jealousies.  Who  is  so  visionary,  as 
to  dream  of  such  a  moral  influence  in  a  republic  over 
the  whole  world  ?  It  should  never  be  forgotten,  that 
the  chief  sources  of  expense  in  every  government 
have  ever  arisen  from  wars  and  rebellions,  from  foreign 
ambition  and  enmity,  or  from  domestic  insurrections 
and  factions.  And  it  may  well  be  presumed,  that 
w  hat  has  been  in  the  past,  will  continue  to  be  in  the 
future. 

^  470.  The  states,  with  a  concurrent  power,  will 


S36  CONSTITUTION  OF  THE  U.  STATES.  [BOOK  III. 

be  entirely  safe,  and  have  ample  resources  to  meet  all 
their  wants,  whatever  they  may  be,  although  few  public 
expenses,  comparatively  speaking,  will  fall  to  their  lot 
to  provide  for.  They  will  be  chiefly  of  a  domestic 
character,  and  affecting  internal  polity ;  whereas,  the 
resources  of  the  Union  will  cover  the  vast  expendi- 
tures, occasioned  by  foreign  intercourse,  wars,  and 
other  charges  necessary  for  the  safety  and  prosperity 
of  the  Union.  The  mere  civil  list  of  any  country  is 
always  small ;  the  expenses  of  armies,  and  navies,  and 
foreign  relations  unavoidably  great.  There  is  no  sound 
reason,  why  the  states  should  possess  any  exclusive 
power  over  sources  of  revenue,  not  required  by  their 
wants.  But  there  is  the  most  urgent  propriety  in  con- 
ceding to  the  Union  all,  which  may  be  commensurate 
to  their  wants.  Any  attempt  to  discriminate  between 
the  sources  of  revenue  would  leave  too  much,  or  too 
little  to  the  states.  If  the  exclusive  power  of  external 
taxation  were  given  to  the  Union,  and  of  internal  taxa- 
tion to  the  states,  it  would,  at  a  rough  calculation, 
probably  give  to  the  states  a  command  of  two  thirds 
of  the  resources  of  the  community,  to  defray  from  a 
tenth  to  a  twentieth  of  its  expenses  ;  and  to  the  Union, 
one  third  of  the  resources  of  the  community,  to  defray 
from  nine  tenths  to  nineteen  twentieths  of  its  expenses. 
Such  an  unequal  distribution  is  wholly  indefensible. 
And  it  may  be  added,  that  the  resources  of  the  Union 
would,  or  might  be  diminished  exactly  in  proportion 
to  the  increase  of  demands  upon  its  treasury  ;  for  (as 
has  been  already  seen)  war,  which  brings  the  great 
expenditures,  narrows,  or  at  least  may  narrow  the  re- 
sources of  taxation  from  duties  on  imports  to  a  very 
alarming  degree.  If  we  enter  any  other  line  of  dis- 
crimination, it  will  be  equally  difficult  to  adjust  the 


r 


CH.   XIV.]     POWERS    OF    CONGRESS TAXES.  337 

proper  proportions  ;  for  the  inquiry  itself,  in  respect 
to  the  future  wants,  as  well  of  the  states,  as  of  the 
Union,  and  their  relative  proportion,  must  involve  ele- 
ments, for  ever  changing,  and  incapable  of  any  precise 
ascertainment.  Too  much,  or  loo  little  would  for  ever 
be  found  to  belong  to  the  states  ;  and  the  states,  as 
well  as  the  Union,  might  be  endangered  by  the  very 
precautions  to  guard  against  abuses  of  power.  Any 
separation  of  the  subjects  of  revenue,  which  could  have 
been  fallen  upon,  would  have  amounted  to  a  sacrifice 
of  the  interests  of  the  Union  to  the  power  of  the  indi- 
vidual states  ;  or  of  a  surrender  of  important  functions 
by  the  latter,  which  would  have  removed  them  to  a 
mean  provincial  servitude,  and  dependence. 

^471.  The  language  of  the  constitution  is,  "  Con- 
"  gress  shall  have  power  to  lay  and  collect  taxes,  duties, 
"  imposts,  and  excises,"  &c.  "  But  all  duties,  imposts, 
"  and  excises  shall  be  uniform  throughout  the  United 
"  States."  A  distinction  is  here  taken  between  taxes, 
and  duties,  imposts,  and  excises  ;  and,  indeed,  there 
are  other  parts  of  the  constitution  respecting  the  taxing 
power,  (as  will  presently  be  more  fully  seen,)  such  as 
the  regulations  respecting  direct  taxes,  the  prohibition 
of  taxes  or  duties  on  exports  by  the  United  States, 
and  the  prohibition  of  imposts  or  duties  by  the  states 
on  imports  or  exports,  which  require  an  attention  to 
this  distinction. 

^  472.  In  a  general  sense,  all  contributions  imposed 
by  the  government  upon  individuals  for  the  service  of 
the  state,  are  called  taxes,  by  whatever  name  they  may 
be  known,  whether  by  the  name  of  tribute,  tythe, 
talliage,  impost,  duty,  gabel,  custom,  subsidy,  aid, 
supply,  excise,  or  other  name.  In  this  sense,  they 
are  usually  divided  into  two  great  classes,  those,  which 

Abr.  43 


338     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

are  direct,  and  those,  wiiich  are  indirect.  Under  the 
former  denomination  are  included  taxes  on  land,  or 
real  property,  and  under  the  latter,  taxes  on  articles 
of  consumption.  The  constitution,  bj  giving  the 
power  to  lay  and  collect  taxes  in  general  terms, 
doubtless  meant  to  include  all  sorts  of  taxes,  whether 
direct  or  indirect.  But,  it  may  be  asked,  if  such  was 
the  intention,  why  were  the  subsequent  words,  duties, 
imposts  and  excises,  added  in  the  clause  ?  Two  reasons 
may  be  suggested  ;  the  iirst,  that  it  was  done  to  avoid 
all  possibility  of  doubt  in  the  construction  of  the  clause, 
since,  in  common  parlance,  the  word  taxes  is  some- 
times applied  in  contradistinction  to  duties,  imposts, 
and  excises,  and,  in  the  delegation  of  so  vital  a  power, 
it  was  desirable  to  avoid  all  possible  misconception  of 
this  sort ;  and,  accordingly,  we  find,  in  the  very  first 
draft  of  the  constitution,  these  explanatory  words  are 
added.  Another  reason  was,  that  the  constitution 
prescribed  difi^erent  rules  of  laying  taxes  in  different 
cases,  and,  therefore,  it  was  indispensable  to  make  a 
discrimination  between  the  classes,  to  which  each  rule 
was  meant  to  apply. 

^  473.  The  second  section  of  the  first  article,  which 
has  been  already  commented  on  for  another  purpose, 
declares,  that  "  direct  taxes  shall  be  apportioned  among 
"  the  several  states,  which  may  be  included  within  this 
"  Union,  according  to  their  respective  numbers."  The 
fourth  clause  of  the  ninth  section  of  the  same  article 
(which  would  regularly  be  commented  on  in  a  future 
page)  declares,  that  "  no  capitation,  or  other  direct 
*'  tax,  shall  be  laid,  unless  in  proportion  to  the  census 
"  or  enumeration  herein  before  directed  to  be  taken ;" 
and  the  clause  now  under  consideration,  that  "  all 
"  duties,  imposts,  and  excises  shall  be  uniform  through- 


CH.  XIV.]      POWERS    OF    CONGRESS TAXES.  339 

*'  out  the  United  States."  Here,  then,  two  rules  are 
prescribed,  the  rule  of  apportionment  (as  it  is  called) 
for  direct  taxes,  and  the  rule  of  uniformity  for  duties^ 
imposts^  and  excises.  If  there  are  any  other  kinds  of 
taxes,  not  embraced  in  one  or  the  other  of  these  two 
classes,  (and  it  is  certainly  difficult  to  give  full  effect 
to  the  words  of  the  constitution  without  supposing 
them  to  exist,)  it  w^ould  seem,  that  congress  is  left  at 
full  liberty  to  levy  the  same  by  either  rule,  or  by  a 
mixture  of  both  rules,  or  perhaps  by  any  other  rule, 
not  inconsistent  with  the  general  purposes  of  the  con- 
stitution. It  is  evident,  that  "  duties,  imposts,  and 
excises"  are  indirect  taxes  in  the  sense  of  the  consti- 
tution. But  the  difficulty  still  remains,  to  ascertain 
what  taxes  are  comprehended  under  this  description  ; 
and  what  under  the  description  of  direct  taxes. 

^  474.  The  word  "  duties  "  has  not,  perhaps,  in  all 
cases  a  very  exact  signification,  or  rather  it  is  used 
sometimes  in  a  larger,  and  sometimes  in  a  narrower 
sense.  In  its  large  sense,  it  is  very  nearly  an  equiva- 
lent to  taxes,  embracing  all  impositions  or  charges 
levied  on  persons  or  things.  In  its  more  restrained 
sense,  it  is  often  used  as  equivalent  to  "  customs," 
which  appellation  is  usually  applied  to  those  taxes, 
which  are  payable  upon  goods  and  merchandise  im- 
ported, or  exported,  and  was  probably  given  on  account 
of  the  usual  and  constant  demand  of  them  for  the  use 
of  kings,  states,  and  governments.  In  this  sense,  it 
is  nearly  synonymous  with  ''  imposts,"  which  is  some- 
times used  in  the  large  sense  of  taxes,  or  duties,  or 
impositions,  and  sometimes  in  the  more  restrained 
sense  of  a  duty  on  imported  goods  and  merchandise. 

§  475.  "  Excises"  are  generally  deemed  to  be  of  an 
opposite  nature  to  "  imposts,"  in  the  restrictive  sense 


340     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

of  the  latter  term,  and  are  defined  to  be  an  inland  im- 
position, paid  sometimes  upon  the  consumption  of  the 
commodity,  or  frequently  upon  the  retail  sale,  which 
is  the  last  stage  before  the  consumption. 

^  476.  But  the  more  important  inquiry  is,  what  are 
direct  taxes  in  the  sense  of  the  constitution,  since  they 
are  required  to  be  laid  by  the  rule  of  apportionment, 
and  all  indirect  taxes,  whether  they  fall  under  the  head 
of  ^'  duties,  imposts,  or  excises,"  or  under  any  other 
description,  may  be  laid  by  the  rule  of  uniformity.  It 
is  clear,  that  capitation  taxes,  or,  as  they  are  more 
commonly  called,  poll  taxes,  that  is,  taxes  upon  the 
polls,  heads,  or  persons,  of  the  contributors,  are  direct 
taxes,  for  the  constitution  has  expressly  enumerated 
them,  as  such.  "  No  capitation,  or  other  direct  tax, 
shall  be  laid,"  &c.  is  the  language  of  that  instrument. 

^  477.  Taxes  on  lands,  houses,  and  other  permanent 
real  estate,  or  on  parts  or  appurtenances  thereof,  have 
always  been  deemed  of  the  same  character,  that  is, 
direct  taxes.  It  has  been  seriously  doubted,  if,  in  the 
sense  of  the  constitution,  any  taxes  are  direct  taxes, 
except  those  on  polls  or  on  lands. 

^  478.  In  the  year  1794,  congress  passed  an  act, 
laying  duties  upon  carriages  for  the  conveyance  of  per- 
sons, which  were  kept  by  or  for  any  person,  for  his 
own  use,  or  to  be  let  out  to  hire,  or  for  the  conveying 
of  passengers,  to  wit,  for  every  coach  the  yearly  sum 
of  ten  dollars,  &c.  &c. ;  and  made  the  levy  uniform 
throughout  the  United  States,  The  constitutionality 
of  the  act  was  contested,  upon  the  ground,  that  it 
was  a  direct  tax,  and  so  ought  to  be  apportion- 
ed among  the  states  according  to  their  numbers. 
After  solemn  argument,  the  Supreme  Court  decided, 
that  it  was  not  a  direct   tax   within   the    meaning  of 


CH.  XIV.J     POWERS    OF    CONGRESS TAXES.  341 

the  constitution.  The  grounds  of  this  decision,  as 
Stated  in  the  various  opinions  of  the  judges,  were  ; 
first,  the  doubt,  whether  any  taxes  were  direct  in  the 
sense  of  the  constitution,  but  capitation  and  land  taxes, 
as  has  been  already  suggested  ;  secondly,  that  in  cases 
of  doubt,  the  rule  of  apportionment  ought  not  to  be 
favoured,  because  it  was  matter  of  compromise,  and  in 
itself  radically  indefensible  and  wrong  ;  thirdly,  the 
monstrous  inequality  and  injustice  of  the  carriage  tax, 
if  laid  by  the  rule  of  apportionment,  which  would  show, 
that  no  tax  of  this  sort  could  have  been  contemplated 
by  the  convention,  as  within  the  rule  of  apportion- 
ment ;  fourthly,  that  the  terms  of  the  constitution 
were  satisfied  by  confining  the  clause,  respecting  di- 
rect taxes,  to  capitation  and  land  taxes ;  fifthly,  that, 
accurately  speaking,  all  taxes  on  expenses  or  con- 
sumption are  indirect  taxes,  and  a  tax  on  carriages  is 
of  this  kind  ;  and,  sixthly,  (what  is  probably  of  most 
cogency  and  force,  and  of  itself  decisive,)  that  no  tax 
could  be  a  direct  one  in  the  sense  of  the  constitution, 
which  was  not  capable  of  apportionment  according  to 
the  rule  laid  down  in  the  constitution. 

^  479.  Having  endeavoured  to  point  out  the  leading 
distinctions  between  direct  and  indirect  taxes,  and  that 
duties,  imposts,  and  excises,  in  the  sense  of  the  con- 
stitution, belong  to  the  latter  class,  the  order  of  the  sub- 
ject would  naturally  lead  us  to  the  inquiry,  why  direct 
taxes  are  required  to  be  governed  by  the  rule  of  appor- 
tionment ;  and  why  "  duties,  imposts,  and  excises  " 
are  required  to  be  uniform  throughout  the  United  States. 
The  answer  to  the  former  will  be  given,  when  we  come 
to  the  farther  examination  of  certain  prohibitory  and 
restrictive  clauses  of  the  constitution  on  the  subject  of 
taxation.     The  answer  to  the  latter  may  be  given  in  a 


342  CONSTITUTION    OF    THE    U.    STATES.    [bOOK  III. 

few  words.  It  was  to  cut  off  all  undue  preferences  of 
one  state  over  another  in  the  regulation  of  subjects 
affecting  their  common  interests.  Unless  duties,  im- 
posts, and  excises  were  uniform,  the  grossest  and  most 
oppressive  inequalities,  vitally  affecting  the  pursuits  and 
employments  of  the  people  of  different  states,  might 
exist.  The  agriculture,  commerce,  or  manufactures  of 
one  state  might  be  built  up  on  the  ruins  of  those  of 
another  ;  and  a  combination  of  a  few  states  in  congress 
might  secure  a  monopoly  of  certain  branches  of  trade 
and  business  to  themselves,  to  the  injury,  if  not  to  the 
destruction,  of  their  less  favoured  neighbors.  The  con- 
stitution throughout  all  its  provisions  is  an  instrument 
of  checks,  and  restraints,  as  well  as  of  powers.  It 
does  not  rely  on  confidence  in  the  general  government 
to  preserve  the  interests  of  all  the  states.  It  is  found- 
ed in  a  wholesome  and  strenuous  jealousy,  which, 
foreseeing  tbe  possibility  of  mischief,  guards  with  so- 
licitude against  any  exercise  of  power,  which  may  en- 
danger the  states,  as  far  as  it  is  practicable.  If  this 
provision,  as  to  uniformity  of  duties,  had  been  omitted, 
although  the  power  might  never  have  been  abused  to 
the  injury  of  the  feebler  states  of  the  Union,  (a  pre- 
sumption, which  history  does  not  justify  us  in  deeming 
quite  safe  or  certain  ;)  yet  it  would,  of  it;self,  have 
been  sufficient  to  demolish,  in  a  practical  sense,  the 
value  of  most  of  the  other  restrictive  clauses  in  the 
constitution.  New  York  and  Pennsylvania  might,  by 
an  easy  combination  with  the  Southern  states,  have 
destroyed  the  whole  navigation  of  New  England.  A 
combination  of  a  different  character,  between  the  New 
England  and  the  Western  states,  might  have  borne 
down  the  agriculture  of  the  South  ;  and  a  combination 
of  a  yet  different  character  might  have  struck   at  the 


CH.  XIV.]     POWERS    OF    CONGRESS TAXES.  343 

vital  interests  of  manufactures.  So  that  the  general 
propriety  of  this  clause  is  established  by  its  intrinsic 
political  wisdom,  as  well  as  by  its  tendency  to  quiet 
alarms,  and  suppress  discontents. 

§  480.  Two  practical  questions  of  great  importance 
have  arisen  npon  the  construction  of  this  clause,  either 
standing  alone,  or  in  connexion  with  other  clauses,  and 
incidental  powers,  given  by  the  constitution.  One  is, 
whether  the  government  has  a  right  to  lay  taxes  for  any 
other  purpose  than  to  raise  revenue,  however  much 
that  purpose  may  be  for  the  common  defence,  or  gen- 
eral welfare.  The  other  is,  whether  the  money,  when 
raised,  can  be  appropriated  to  any  other  purposes,  than 
such,  as  are  pointed  out  in  the  other  enumerated  pow- 
ers of  congress.  The  former  involves  the  question, 
whether  congress  can  lay  taxes  to  protect  and  encour- 
age domestic  manufactures  ;  the  latter,  w^hether  con- 
gress can  appropriate  money  to  internal  improvements. 
Each  of  these  questions  has  given  rise  to  much  animat- 
ed controversy ;  each  has  been  affirmed  and  denied, 
with  great  pertinacity,  zeal,  and  eloquent  reasoning  ; 
each  has  become  prominent  in  the  struggles  of  party  ; 
and  defeat  in  each  has  not  hitherto  silenced  opposition, 
or  given  absolute  security  to  victory.  The  contest  is 
often  renewed  ;  and  the  attack  and  defence  maintain- 
ed with  equal  ardour. 

^  481.  It  is  unnecessary  to  consider  the  argument 
at  present,  so  far  as  it  bears  upon  the  constitutional 
authority  of  congress  to  protect  or  encourage  manufac- 
tures ;  because  that  subject  will  more  properly  come 
under  review,  in  all  its  bearings,  under  another  head, 
viz.  the  power  to  regulate  commerce,  to  which  it  is 
nearly  allied,  and  from  which  it  is  more  usually  derived. 
Stripping  the  argument  against  the  power  of  this  ad- 


344    CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

ventitious  circumstance,  it  resolves  itself  into  this  state- 
ment. The  power  to  lay  taxes  is  a  power  exclusive!  j  giv- 
en to  raise  revenue,  and  it  can  constitutionally  be  appli- 
ed to  no  other  purposes.  The  application  for  other  pur- 
poses is  an  abuse  of  the  power  ;  and,  in  fact,  however 
it  may  be  inform  disguised,  it  is  a  premeditated  usur- 
pation of  authority.  Whenever  money  or  revenue  is 
wanted  for  constitutional  purposes,  the  power  to  lay 
taxes  may  be  applied  to  obtain  it.  Whenever  money 
or  revenue  is  not  so  wanted,  it  is  not  a  proper  means 
for  any  constitutional  end. 

^  482.  The  argument  in  favour  of  the  constitutional 
authority  is  grounded  upon  the  terms  and  the  intent 
of  the  constitution.  It  seeks  for  the  true  meaning  and 
objects  of  the  power  according  to  the  obvious  sense  of 
the  language,  and  the  nature  of  the  government  pro- 
posed to  be  established  by  that  instrument,  it  relies 
upon  no  strained  construction  of  words  ;  but  demands 
a  fair  and  reasonable  interpretation  of  the  clause,  with- 
out any  restrictions  not  naturally  implied  in  it,  or  in 
the  context.  It  will  not  do  to  assume,  that  the  clause 
was  intended  solely  for  the  purposes  of  raising  revenue  ; 
and  then  argue,  that  being  so,  the  power  cannot  be 
constitutionally  applied  to  any  other  purposes.  The 
very  point  in  controversy  is,  whether  it  is  restricted 
to  purposes  of  revenue.  That  must  be  proved  ;  and 
cannot  be  assumed,  as  the  basis  of  reasoning. 

^  483.  The  language  of  the  constitution  is,  "  Con- 
"  gress  shall  have  power  to  lay  and  collect  taxes,  duties, 
"  imposts,  and  excises."  If  the  clause  had  stopped 
here,  and  remained  in  this  absolute  form,  (as  it  was  in 
fact,  when  reported  in  the  first  draft  in  the  conven- 
tion,) there  could  not  have  been  the  slightest  doubt  on 
the  subject.     The  absolute  power  to  lay  taxes  includes 


CH.  XIV.]      POWERS    OF    CONGRESS TAXES.  345 

the  power  in  every  form,  in  which  it  may  be  used, 
and  for  every  purpose,  to  which  the  legislature  may 
choose  to  apply  it.  This  results  from  the  very  nature 
of  such  an  unrestricted  power.  A  fortiori  it  might 
be  applied  by  congress  to  purposes,  for  which  nations 
have  been  accustomed  to  apply  it.  Now,  nothing 
is  more  clear,  from  the  history  of  commercial  nations, 
than  the  fact,  that  the  taxing  power  is  often,  very 
often,  applied  for  other  purposes,  than  revenue.  It  is 
often  applied,  as  a  regulation  of  commerce.  It  is 
often  applied,  as  a  virtual  prohibition  upon  the  impor- 
tation of  particular  articles,  for  the  encouragement 
and  protection  of  domestic  products,  and  industry  ;  for 
the  support  of  agriculture,  commerce,  and  manufac- 
tures ;  for  retaliation  upon  foreign  monopolies  and  in- 
jurious restrictions  ;  for  mere  purposes  of  state  policy, 
and  domestic  economy ;  sometimes  to  banish  a  noxious 
article  of  consumption  ;  sometimes,  as  a  bounty  upon 
an  infant  manufacture,  or  agricultural  product ;  some- 
times, as  a  temporary  restraint  of  trade  ;  sometimes, 
as  a  suppression  of  particular  employments  ;  some- 
times, as  a  prerogative  power  to  destroy  competition, 
and  secure  a  monopoly  to  the  government ! 

^  484.  If,  then,  the  power  to  lay  taxes,  being  gen- 
eral, may  embrace,  and  in  the  practice  of  nations  does 
embrace,  all  these  objects,  either  separately,  or  in 
combination,  upon  what  foundation  does  the  argument 
rest,  which  assumes  one  object  only,  to  the  exclusion 
of  all  the  rest  ?  which  insists,  in  effect,  that  because 
revenue  may  be  one  object,  therefore  it  is  the  sole 
object  of  the  power  ?  which  assumes  its  own  con- 
struction to  be  correct,  because  it  suits  its  own  theory, 
.  and  denies  the  same  right  to  others,  entertaining  a 
different  theory  ?  If  the  power  is  general  in  its  terms, 
Mr,  44 


346     CONSTITUTION  OF  THE  U.  STATES.  [BOOK  III. 

is  it  not  an  abuse  of  all  fair  reasoning  to  insist,  that  it 
is  particular  ?  to  desert  the  import  of  the  language, 
and  to  substitute  other  and  different  language  ?  Is 
this  allowable  in  regard  to  any  instrument  ?  Is  it  al- 
lowable in  an  especial  manner,  as  to  constitutions  of 
government,  growing  out  of  the  rights,  duties,  and 
exigencies  of  nations,  and  looking  to  an  infinite  variety 
of  circumstances,  which  may  require  very  different 
applications  of  a  given  power  ? 

^  485.  The  other  question  is,  whether  congress  has 
any  power  to  appropriate  money,  raised  by  taxation  or 
otherwise,  for  any  other  purposes,  than  those  pointed 
out  in  the  enumerated  powers,  which  follow  the  clause 
respecting  taxation.  It  is  said,  "  raised  by  taxation  or 
otherwise  ;"  for  there  may  be,  and  in  fact  are,  other 
sources  of  revenue,  by  which  money  may,  and  does 
come  into  the  treasury  of  the  United  States  otherwise, 
than  by  taxation  ;  as,  for  instance,  by  fines,  penalties, 
and  forfeitures  ;  by  sales  of  the  public  lands,  and  in- 
terests and  dividends  on  bank  shocks  ;  by  captures  and 
prize  in  times  of  war  ;  and  by  other  incidental  profits 
and  emoluments  growing  out  of  governmental  transac- 
tions and  prerogatives.  But,  for  all  the  common  pur- 
poses of  argument,  the  question  may  be  treated,  as  one 
growing  out  of  levies  by  taxation. 

§  486.  The  reasoning,  upon  which  the  opinion,  ad- 
verse to  the  authority  of  congress  to  make  appropria- 
tions not  within  the  scope  of  the  enumerated  powers, 
is  maintained,  has  been  already,  in  a  great  measure, 
stated  in  the  preceding  examination  of  the  grammatical 
construction  of  the  clause,  giving  the  power  to  lay 
taxes.  The  controversy  is  virtually  at  an  end,  if  it 
is  once  admitted,  that  the  words,  "  to  provide  for  the 
common  defence  and  general  welfare,"  are  a  part  and 


CH.  XIV.]     POWERS    OF    CONGRESS  TAXES.  347 

qualification  of  the  power  to  lay  taxes  ;  for  then,  con- 
gress has  certainly  a  right  to  appropriate  money  to  any 
purposes,  or  i^  any  manner,  conducive  to  those  ends. 
The  whole  stress  of  the  argument  is,  therefore,  to  es- 
tablish, that  the  words,  "  to  provide  for  the  common 
defence  and  general  welfare,"  do  not  form  an  independ- 
ent power,  nor  any  qualification  of  the  power  to  lay 
taxes.  And  the  argument  is,  that  they  are  "  mere 
general  terms,  explained  and  limited  by  the  subjoined 
specifications."  It  is  attempted  to  be  fortified  by 
a  recurrence  to  the  history  of  the  confederation  ;  to 
the  successive  reports  and  alterations  of  the  tax 
clause  in  the  convention  ;  to  the  inconveniencies  of 
such  a  large  construction ;  and  to  the  supposed  im- 
possibility, that  a  power  to  make  such  appropria- 
tions for  the  common  defence  and  general  welfare, 
should  not  have  been,  at  the  adoption  of  the  constitu- 
tion, a  subject  of  great  alarm,  and  jealousy  ;  and  as 
such,  resisted  in  and  out  of  the  state  conventions. 

§  487.  The  argument  in  favour  of  the  power  is  de- 
rived, in  the  first  place,  from  the  language  of  the 
clause,  conferring  the  power,  (which  it  is  admitted  in 
its  literal  terms  covers  it ;)  secondly,  from  the  nature 
of  the  power,  which  renders  it  in  the  highest  degree 
expedient,  if  not  indispensable  for  the  due  operations 
of  the  national  government ;  thirdly,  from  the  early, 
constant  and  decided  maintenance  of  it  by  the  govern- 
ment and  its  functionaries,  as  well  as  by  many  of  our 
ablest  statesmen  from  the  very  commencement  of  the 
constitution.  So,  that  it  has  the  language  and  intent 
of  the  text,  and  the  practice  of  the  government  to  sus- 
tain it  against  an  artificial  doctrine,  set  up  on  the 
other  side. 

^  488.  The  argument  derived  from  the  words  and 


348  CONSTITUTION    OF   THE    U.    STATES.    [bOOK  III. 

intent  has  been  so  fully  considered  already,  that  it 
cannot  need  repetition.  It  is  summed  up  with  great 
force  in  the  report  of  the  secretary  of  the  treasury  on 
manufactures,  in  1791.  "  The  national  legislature," 
says  he,  ''  has  express  authority  to  lay  and  collect  tax- 
es, duties,  imposts,  and  excises ;  to  pay  the  debts  and 
provide  for  the  common  defence  and  general  welfare, 
with  no  other  qualifications,  than  that  all  other  duties, 
imposts,  and  excises,  shall  be  uniform  throughout  the 
United  States  ;  that  no  capitation  or  other  direct  tax 
shall  be  laid,  unless  in  proportion  to  numbers  ascer- 
tained by  a  census,  or  enumeration  taken  on  the  prin- 
ciple prescribed  in  the  constitution  ;  and  that  no  tax  or 
duty  shall  be  laid  on  articles  exported  from  any  state. 
These  three  qualifications  excepted,  the  power  to  raise 
money  is  plenary  and  indefinite.  And  the  objects,  to 
which  it  may  be  appropriated,  are  no  less  comprehen- 
sive, than  the  payment  of  the  public  debts,  and  the 
providing  for  the  common  defence  and  general  welfare. 
Tiie  terms  '  general  welfare '  were  doubtless  intended 
to  sij2:nify  more,  than  was  expressed  or  imported  in 
those,  which  preceded ;  otherwise  numerous  exigen- 
cies, incident  to  the  affairs  of  the  nation,  would  have 
been  left  without  a  provision.  The  phrase  is  as  com- 
prehensive, as  any,  that  could  have  been  used  ;  because 
it  was  not  fit,  that  the  constitutional  authority  of  the 
Union  to  appropriate  its  revenues  should  have  been 
restricted  within  narrower  limits,  than  the  general 
welfare  ;  and  because  this  necessarily  embraces  a  vast 
variety  of  particulars,  which  are  susceptible  neither  of 
specification,  nor  of  definition.  It  is,  therefore,  of  ne- 
cessity left  to  the  discretion  of  the  national  legislature 
to  pronounce  upon  the  objects,  which  concern  the 
general  welfare,  and  for  which,  under  that  description, 


t 


CH.  XIV.]      POWERS    OF    CONGRESS TAXES.  349 

an  appropriation  of  money  is  requisite  and  proper. 
And  there  seems  no  room  for  a  doubt,  that  whatever 
concerns  the  general  interests  of  learning,  of  agricul- 
ture, of  manufactures,  and  of  commerce,  are  within 
the  sphere  of  the  national  councils,  so  far  as  regards 
an  application  of  money.  The  only  qualification  of 
the  generality  of  the  phrase  in  question,  which  seems 
to  be  admissible,  is  this ;  that  the  object,  to  which  an 
appropriation  of  money  is  to  be  made,  must  be  general, 
and  not  local ;  its  operation  extending  in  fact,  or  by 
possibility,  throughout  the  Union,  and  not  being  con- 
fined to  a  particular  spot.  No  objection  ought  to  arise 
to  this  construction  from  a  supposition,  that  it  would 
imply  a  power  to  do,  whatever  else  should  appear  to 
congress  conducive  to  the  general  welfare.  A  power 
to  appropriate  money  with  this  latitude,  which  is 
granted  in  express  terms,  would  not  carry  a  power  to 
do  any  other  thing,  not  authorized  in  the  constitution 
either  expressly,  or  by  fair  implication." 

§  489.  In  regard  to  the  practice  of  the  government, 
it  has  been  entirely  in  conformity  to  the  principles  here 
laid  down.  Appropriations  have  never  been  limited 
by  congress  to  cases  falling  within  the  specific  powers 
enumerated  in  the  constitution,  whether  those  powers 
be  construed  in  their  broad,  or  their  narrow  sense. 
And  in  an  especial  manner  appropriations  have  been 
made  to  aid  internal  improvements  of  various  sorts,  in 
our  roads,  our  navigation,  our  streams,  and  other  ob- 
jects of  a  national  character  and  importance.  In  some 
cases,  not  silently,  but  upon  discussion,  congress  has 
gone  the  length  of  making  appropriations  to  aid  desti- 
tute foreigners,  and  cities  labouring  under  severe  ca- 
lamities ;  as  in  the  relief  of  the  St.  Domingo  refugees, 
in  1794,  and  the  citizens  of  Venezuela,  who  suffered 


350  CONSTITUTION    OF    THE    U.    STATES.     [BOOK  III. 

from  an  earthquake  in  1812,  An  illustration,  equally 
forcible,  of  a  domestic  character,  is  in  the  bounty 
given  in  the  cod-fisheries,  which  was  strenuously  re- 
sisted on  constitutional  grounds  in  1792  ;  but  which 
still  maintains  its  place  in  the  statute  book  of  the 
United  States. 

^  490.  In  order  to  prevent  the  necessity  of  recurring 
again  to  the  subject  of  taxation,  it  seems  desirable  to 
bring  together,  in  this  connexion,  all  the  remaining 
provisions  of  the  constitution  on  this  subject,  though 
they  are  differently  arranged  in  that  instrument.  The 
first  one  is,  "  no  capitation  or  other  direct  tax  shall  be 
*'  laid,  unless  in  proportion  to  the  census,  or  enumera- 
"  tion,  herein  before  directed  to  be  taken."  This  in- 
cludes poll  taxes,  and  land  taxes,  as  has  been  already 
remarked. 

^  491.  The  object  of  this  clause  doubtless  is,  to 
secure  the  Southern  states  against  any  undue  propor- 
tion of  taxation  ;  and,  as  nearly  as  practicable,  to 
overcome  the  necessary  inequalities  of  a  direct  tax. 
The  South  have  a  very  large  slave  population  ;  and 
consequently  a  poll  tax,  which  should  be  laid  by  the 
rule  of  uniformity,  would  operate  with  peculiar  seve- 
rity on  them.  It  would  tax  their  property  beyond  its 
supposed  relative  value,  and  productiveness  to  white 
labour.  Hence,  a  rule  is  adopted,  which,  in  effect, 
in  relation  to  poll  taxes,  exempts  two  fifths  of  all 
slaves  from  taxation  ;  and  thus  is  supposed  to  equalize 
the  burthen  with  the  white  population. 

^  492.  In  respect  to  direct  taxes  on  land,  the  diffi- 
culties of  making  a  due  apportionment,  so  as  to  equal- 
ize the  burthens  and  expenses  of  the  Union  according 
to  the  relative  wealth  and  ability  of  the  states,  was 
felt  as  a  most  serious  evil  under  the  confederation. 


CH.  XIV.]      POWERS    OF    CONGRESS — -TAXES.  351 

By  that  instrument,  (it  will  be  recollected,)  the  appor- 
tionment was  to  be  among  the  states  according  to  the 
value  of  all  land  within  each  state,  granted  or  surveyed 
for  any  person,  and  the  buildings  and  improvements 
thereon,  to  be  estimated  in  such  mode,  as  congress 
should  prescribe.  The  whole  proceedings  to  accom- 
plish such  an  estimate  were  so  operose  and  inconve- 
nient, that  congress,  in  April,  1783,  recommended,  as 
a  substitute  for  the  article,  an  apportionment,  founded 
on  the  basis  of  population,  adding  to  the  whole  number 
of  white  and  other  free  citizens  and  inhabitants,  in- 
cluding those  bound  to  service  for  a  term  of  years, 
three  fifths  of  all  other  persons,  &:c.  in  each  state  ; 
which  is  precisely  the  rule  adopted  in  the  constitution. 
^  493.  Those,  who  are  accustomed  to  contemplate 
the  circumstances,  which  produce  and  constitute  na- 
tional wealth,  must  be  satisfied,  that  there  is  no  com- 
mon standard,  by  which  the  degrees  of  it  can  be  as- 
certained. Neither  the  value  of  lands,  nor  the  num- 
bers of  the  people,  which  have  been  successively  pro- 
posed, as  the  rule  of  state  contributions,  has  any  pre- 
tension to  being  deemed  a  just  representative  of  that 
wealth.  If  we  compare  the  wealth  of  the  Netherlands 
with  that  of  Russia  or  Germany,  or  even  of  France, 
and  at  the  same  time  compare  the  total  value  of  the 
lands,  and  the  aggregate  population  of  the  contracted 
territory  of  the  former,  with  the  total  value  of  the 
lands,  and  the  aggregate  population  of  the  immense 
regions  of  either  of  the  latter  kingdoms,  it  will  be  at 
once  discovered,  that  there  is  no  comparison  between 
the  proportions  of  these  two  subjects,  and  that  of  the 
relative  wealth  of  those  nations.  If  a  like  parallel  be 
run  between  the  American  states,  it  will  furnish  a 
similar  result.     Let  Virginia  be  contrasted  with  Mas- 


352  CONSTITUTION    OF    THE    U.    STATES.     [BOOK  III. 

sachusetts,  Pennsjlvania  with  Connecticut,  Maryland 
with  Virginia,  Rhode-Island  with  Ohio,  and  the  dis- 
proportion will  be  at  once  perceived.  The  wealth  of 
neither  will  be  found  to  be,  in  proportion  to  numbers, 
or  the  value  of  lands. 

^  494.  The  truth  is,  that  the  wealth  of  nations  de- 
pends upon  an  infinite  variety  of  causes.  Situation, 
soil,  climate  ;  the  nature  of  the  productions  ;  the  nature 
of  the  government ;  the  genius  of  the  citizens  ;  the 
degree  of  information  they  possess  ;  the  state  of  com- 
merce, of  arts,  and  industry  ;  the  manners  and  habits 
of  the  people  ;  these,  and  many  other  circumstances, 
too  complex,  minute,  and  adventitious  to  admit  of  a 
particular  enumeration,  occasion  differences,  hardly 
conceivable,  in  the  relative  opulence  and  riches  of  dif- 
ferent countries.  The  consequence  is,  that  there  can 
be  no  common  measure  of  national  wealth  ;  and,  of 
course,  no  general  rule,  by  which  the  ability  of  a 
state  to  pay  taxes  can  be  determined.  The  estimate, 
however  fairly  or  deliberately  made,  is. open  to  many 
errors  and  inequalities,  which  become  the  fruitful 
source  of  discontents,  controversies,  and  heart-burn- 
ings. These  are  sufficient,  in  themselves,  to  shake 
the  foundations  of  any  national  government,  when  no 
common  artificial  rule  is  adopted  to  settle  permanently 
the  apportionment ;  and  every  thing  is  left  open  for 
debate,  as  often  as  a  direct  tax  is  to  be  imposed. 
Even  in  those  states,  where  direct  taxes  are  constantly 
resorted  to,  every  new  valuation  or  apportionment  is 
found,  practically,  to  be  attended  with  great  incon- 
venience, and  excitements.  In  short,  it  may  be  af- 
firmed without  fear  of  contradiction,  that  some  artifi- 
cial rule  of  apportionment  of  a  fixed  nature  is  indis- 
pensable to  the  public  repose  ;   and  considering  the 


CH.  XIV.]     POWERS    OF    CONGRESS  TAXES.  353 

peculiar  situation  of  the  American  states,  and  espe- 
cially of  the  slave  and  agricultural  states,  it  is  difficult 
to  find  any  rule  of  greater  equality  or  justice,  than 
that,  which  the  constitution  has  adopted. 

^  495.  The  next  clause  in  the  constitution  is  :  ''  No 
"  tax  or  duty  shall  be  laid  on  articles  exported  from 
"  any  state.  No  preference  shall  be  given  by  any  reg- 
"  ulation  of  commerce,  or  revenue,  to  the  ports  of  one 
*'  state  over  those  of  another  ;  nor  shall  vessels  bound 
*'  to,  or  from  one  state  be  obliged  to  enter,  clear,  or 
"  pay  duties  in  another." 

§  496.  The  obvious  object  of  these  provisions  is,  to 
prevent  any  possibility  of  applying  the  power  to  lay 
taxes,  or  regulate  commerce,  injuriously  to  the  inter- 
ests of  any  one  state,  so  as  to  favour  or  aid  another. 
If  congress  were  allowed  to  lay  a  duty  on  exports 
from  any  one  state  it  might  unreasonably  injure,  or 
even  destroy,  the  staple  productions,  or  common  arti- 
cles of  that  state.  The  inequality  of  such  a  tax  would 
be  extreme.  In  some  of  the  states,  the  whole  of  their 
means  result  from  agricultural  exports.  In  others,  a 
great  portion  is  derived  from  other  sources  ;  from  ex- 
ternal fisheries  ;  from  freights  ;  and  from  the  profits  of 
commerce  in  its  largest  extent.  The  burthen  of  such 
a  tax  would,  of  course,  be  very  unequally  distributed. 
The  power  to  intermeddle  with  the  subject  of  ex- 
ports is,  therefore,  wholly  taken  away.  On  the  other 
hand,  preferences  might  be  given  to  the  ports  of  one 
state  by  regulations,  either  of  commerce  or  revenue, 
which  might  confer  on  them  local  facilities  or  priv- 
ileges in  regard  to  commerce,  or  revenue.  And  such 
preferences  might  be  equally  fatal,  if  indirectly 
given  under  the  milder  form  of  requiring  an  entry, 
clearance,  or  payment  of  duties  in  the  ports  of  any 

Abr.  45 


354     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

State,  Other  than  the  ports  of  the  state,  to  or  from 
which  the  vessel  was  bound.  The  last  clause,  there- 
fore, does  not  prohibit  congress  from  requiring  an  entry 
or  clearance,  or  payment  of  duties  at  the  custom-house, 
on  importations  in  any  port  of  a  state,  to  or  from  which 
the  vessel  is  bound  ;  but  it  cuts  off  the  right  to  require 
such  acts  to  be  done  in  other  states,  to  which  the  ves- 
sel is  not  bound.  In  other  words,  it  cuts  off  the  power 
to  require  that  circuity  of  voyage,  which,  under  the 
British  colonial  system,  was  employed  to  interrupt 
the  American  commerce  before  the  revolution.  No 
American  vessel  could  then  trade  with  Europe,  unless 
through  a  circuitous  voyage  to  and  from  a  British  port. 
^  497.  The  next  clause  contains  a  prohibition  on 
the  states  for  the  like  objects  and  purposes.  "  No 
"  state  shall,  ivithout  the  consent  of  congress^  lay  any 
"  imposts,  or  duties  on  imports  or  exports,  except 
"  what  may  be  absolutely  necessary  for  executing  its 
"  inspection  laws  ;  and  the  nett  produce  of  all  duties 
"  and  imposts  laid  by  any  state  on  imports  and  exports 
"  shall  be  for  the  use  of  the^  treasury  of  the  United 
"  States  ;  and  all  such  laws  shall  be  subject  to  the 
"  revision  and  control  of  congress.  No  state  shall, 
''  without  the  consent  of  congress,  lay  any  tonnage 
"  duty."  If  there  is  wisdom  and  sound  policy  in  re- 
straining the  United  States  from  exercising  the  power 
of  taxation  unequally  in  the  states,  there  is,  at  least, 
equal  wisdom  and  policy  in  restraining  the  states  them- 
selves from  the  exercise  of  the  same  power  injuriously 
to  the  interests  of  each  other.  A  petty  warfare  of 
regulation  is  thus  prevented,  which  would  rouse  re- 
sentments, and  create  dissensions,  to  the  ruin  of  the 
harmony  and  amity  of  the  states.  The  power  to  en- 
force their  inspection  laws  is  still  retained,  subject  to 


CH.  XIV.]     POWERS    OF    CONGRESS TAXES.  355 

the  revision  and  control  of  congress  ;  so,  that  sufficient 
provision  is  made  for  the  convenient  arrangement  of 
their  domestic  and  internal  trade,  whenever  it  is  not 
injurious  to  the  general  interests. 

§  498.  Inspection  laws  are  not,  strictly  speaking, 
regulations  of  commerce,  though  they  may  have  a  re- 
mote and  considerable  influence  on  commerce.  The 
object  of  inspection  laws  is  to  improve  the  quality  of 
articles  produced  by  the  labour  of  a  country  ;  to  fit 
them  for  exportation,  or  for  domestic  use.  These 
laws  act  upon  the  subject,  before  it  becomes  an  article 
of  commerce,  foreign  or  domestic,  and  prepare  it  for 
the  purpose.  They  form  a  portion  of  that  immense 
mass  of  legislation,  which  embraces  every  thing  in 
the  territory  of  a  state  not  surrendered  to  the  general 
government.  Inspection  laws,  quarantine  laws,  and 
health  laws,  as  well  as  laws  for  regulating  the  internal 
commerce  of  a  state,  and  others,  which  respect  roads, 
fences,  &c.  are  component  parts  of  state  legislation, 
resulting  from  the  residuary  powers  of  state  sover- 
eignty. No  direct  power  over  these  is  given  to  con- 
gress, and  consequently  they  remain  subject  to  state 
legislation,  though  they  may  be  controlled  by  congress, 
when  they  interfere  with  their  acknowledged  powers. 
The  power  to  lay  duties  and  imposts  on  imports  and 
exports,  and  to  lay  a  tonnage  duty,  are  doubtless  pro- 
perly considered  a  part  of  the  taxing  power  ;  but  they 
may  also  be  applied,  as  a  regulation  of  commerce. 

^  499.  Until  a  recent  period,  no  difficulty  occurred 
in  regard  to  the  prohibitions  of  this  clause.  Congress, 
with  a  just  liberality,  gave  full  eflect  to  the  inspection 
laws  of  the  states,  and  required  them  to  be  observed 
by  the  revenue  officers  of  the  United  States.  In  the 
vear  1821,  the  state  of  Maryland  passed  an  act  requir- 


356  CONSTITUTION    OF    THE    U.    STATES.      [bOOK  III. 

ing,  that  all  importers  of  foreign  articles  or  commodi- 
ties, &c.  by  bale  or  package,  or  of  wine,  rum,  &c.  &c., 
and  other  persons  selling  the  same  by  wholesale,  bale, 
or  package,  hogshead,  barrel,  or  tierce,  should,  before 
they  were  authorized  to  sell,  take  out  a  license,  for 
which  they  were  to  pay  Jifty  dollars,  under  certain 
penalties.  Upon  this  act  a  question  arose,  whether  it 
was,  or  not  a  violation  of  the  constitution  of  the  United 
States,  and  especially  of  the  prohibitory  clause  now 
under  consideration.  Upon  solemn  argument,  the 
Supreme  Court  decided,  that  it  was. 

^  500.  As  the  power  of  taxation  exists  in  the  states 
concurrently  with  the  United  States,  subject  only  to 
the  restrictions  imposed  by  the  constitution,  several 
questions  have  from  time  to  time  arisen  in  regard  to 
the  nature  and  extent  of  the  state  power  of  taxation. 

^  501.  In  the  year  1818,  the  state  of  Maryland 
passed  an  act,  laying  a  tax  on  all  banks,  and  branches 
thereof,  not  chartered  by  the  legislature  of  that  state  ; 
and  a  question  was  made,  whether  the  state  had  a 
right  under  that  act  to  lay  a  tax  on  the  Branch  Bank 
of  the  United  States  in  that  state.  This  gave  rise  to 
a  most  animated  discussion  in  the  Supreme  Court  of 
the  United  States ;  where  it  was  finally  decided,  that 
the  tax  was,  as  to  the  Bank  of  the  United  States, 
unconstitutional . 

^  502.  In  another  case  the  question  was  raised, 
whether  a  state  had  a  constitutional  authority  to  tax 
stock  issued  for  loans  to  the  United  States  ;  and  it 
was  held  by  the  Supreme  Court,  that  a  state  had  not. 

^  503.  It  is  observable,  that  these  decisions  turn 
upon  the  point,  that  no  state  can  have  authority  to  tax 
an  instrument  of  the  United  States,  or  thereby  to  di- 
minish the  means  of  the  United  States,  used  in  the 


CH.  XIV.]     POWERS    OF    CONGRESS TAXES.  357 

exercise  of  powers  confided  to  it.  But  there  is  no 
prohibition  upon  any  state  to  tax  any  bank  or  other 
corporation  created  by  its  own  authority,  unless  it  has 
restrained  itself,  by  the  charter  of  incorporation,  from 
the  power  of  taxation.  It  may  be  added,  that  con- 
gress may,  without  doubt,  tax  state  banks  ;  for  it  is 
clearly  within  the  taxing  power  confided  to  the  gen- 
eral government.  When  congress  tax  the  chartered 
institutions  of  the  states,  they  tax  their  own  constitu- 
ents ;  and  such  taxes  must  be  uniform.  But  when  a 
state  taxes  an  institution  created  by  congress,  it  taxes 
an  instrument  of  a  superior  and  independent  sove- 
reignty, not  represented  in  the  state  legislature. 


358     CONSTITUTION  OF  THE  U.  STATES.  [BOOK  III. 

CHAPTER  XV. 

POWER  TO   BORROW   MONEY   AND   REGULATE  COM- 
MERCE. 

^  504.  Having  finished  this  examination  of  the 
power  of  taxation,  and  of  the  accompanying  restric- 
tions and  prohibitions,  the  other  powers  of  congress 
will  be  now  examined  in  the  order,  in  which  they 
stand  m  the  eighth  section. 

§  505.  The  next,  is  the  power  of  congress,  ''  to 
"  borrow  money  on  the  credit  of  the  United  States." 
This  power  seems  indispensable  to  the  sovereignty 
and  existence  of  a  national  government.  Even  under 
the  confederation  this  power  was  expressly  delegated. 
The  remark  is  unquestionably  just,  that  it  is  a  power 
inseparably  connected  with  that  of  raising  a  revenue, 
and  with  the  duty  of  protection,  which  that  power  im- 
poses upon  the  general  government.  Though  in  times 
of  profound  peace  it  may  not  be  ordinarily  necessary 
to  antici{)ate  the  revenues  of  a  state  ;  yet  the  experi- 
ence of  all  nations  must  convince  us,  that  the  burthen 
and  expenses  of  one  year  in  time  of  war  may  more 
than  equal  the  ordinary  revenue  of  ten  years.  Hence, 
a  debt  is  almost  unavoidable,  when  a  nation  is  plunged 
into  a  state  of  war.  The  least  burthensome  mode  of 
contracting  a  debt  is  by  a  loan.  Indeed,  this  recourse 
becomes  the  more  necessary,  because  the  ordinary  du- 
ties upon  importations  are  subject  to  great  diminution 
and  fluctuations  in  times  of  war ;  and  a  resort  to  direct 
taxes  for  the  whole  supply  would,  under  such  circum- 
stances, become  oppressive  and  ruinous  to  the  agricul- 
tural interests  of  the  country.    Even  in  times  of  peace 


CH.  XV.]      POWERS    OF    CONGRESS  LOANS.  359 

exigencies  may  occur,  which  render  a  loan  the  most 
facile,  economical,  and  ready  means  of  supply,  either 
to  meet  expenses,  or  to  avert  calamities,  or  to  save  the 
country  from  an  undue  depression  of  its  staple  produc- 
tions. The  government  of  the  United  States  has,  on 
several  occasions  in  times  of  profound  peace,  obtained 
large  loans,  among  which  a  striking  illustration  of  the 
economy  and  convenience  of  such  arrangements  will 
be  found  in  the  creation  of  stock  on  the  purchase  of 
Louisiana.  The  power  to  borrow  money  by  the 
United  States  cannot  (as  has  been  already  seen)  in 
any  way  be  controlled,  or  interfered  with  by  the  states. 
The  grant  of  the  power  is  incompatible  with  any 
restraining  or  controlling  power  ;  and  the  declaration 
of  supremacy  in  the  constitution  is  a  declaration  that 
no  such  restraining  or  controlling  power  shall  be  ex- 
ercised. 

§  506.  The  next  power  of  congress  is,  "  to  regulate 
"  commerce  with  foreign  nations,  and  among  the  sev- 
"  eral  states,  and  with  the  Indian  tribes." 

^  507.  The  want  of  this  power  (as  has  been  already 
seen)  was  one  of  the  leading  defects  of  the  confedera- 
tion, and  probably,  as  much  as  any  one  cause,  con- 
duced to  the  establishment  of  the  constitution.  It  is  a 
power  vital  to  the  prosperity  of  the  Union  ;  and  with- 
out it  the  government  would  scarcely  deserve  the  name 
of  a  national  government ;  and  would  soon  sink  into 
discredit  and  imbecility.  It  would  stand,  as  a  mere 
shadow  of  sovereignty,  to  mock  our  hopes,  and  involve 
us  in  a  common  ruin. 

^  508.  The  oppressed  and  degraded  state  of  com- 
merce, previous  to  the  adoption  of  the  constitution,  can 
scarcely  be  forgotten.  It  was  regulated  by  foreign 
nations  with  a  single  view  to  their  own  interests ;  and 


360 


CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 


our  disunited  efforts  to  counteract  their  restrictions 
were  rendered  impotent  by  a  want  of  combination. 
Congress,  indeed,  possessed  the  power  of  making  trea- 
ties ;  but  the  inability  of  the  federal  government  to 
enforce  them  had  become  so  apparent,  as  to  render 
that  power  in  a  great  degree  useless.  Those,  who  felt 
the  injury  arising  from  this  state  of  things,  and  those, 
who  were  capable  of  estimating  the  influence  of  com- 
merce on  the  prosperity  of  nations,  perceived  the 
necessity  of  giving  the  control  over  this  important  sub- 
ject to  a  single  government.  It  is  not,  therefore,  mat- 
ter of  surprise,  that  the  grant  should  be  as  extensive, 
as  the  mischief,  and  should  comprehend  all  foreign 
commerce,  and  all  commerce  among  the  states. 

§  509.  In  considering  this  clause  of  the  constitu- 
tion several  important  inquiries  are  presented.  In  the 
first  place,  w^hat  is  the  natural  import  of  the  terms ;  in 
the  next  place,  how  far  the  power  is  exclusive  of  that 
of  the  states  ;  in  the  third  place,  to  what  purposes  and 
for  what  objects  the  power  may  be  constitutionally  ap- 
plied ;  and  in  the  fourth  place,  what  are  the  true  nature 
and  extent  of  the  power  to  regulate  commerce  with  the 
Indian  tribes. 

§  510.  In  the  first  place,  then,  what  is  the  constitu- 
tional meaning  of  the  words,  "to  regulate  commerce;" 
for  the  constitution  being  (as  has  been  aptly  said)  one 
of  enumeration,  and  not  of  definition,  it  becomes  neces- 
sary, in  order  to  ascertain  the  extent  of  the  power,  to 
ascertain  the  meaning  of  the  words.  The  power  is  to 
regulate  ;  that  is,  to  prescribe  the  rule,  by  which  com- 
merce is  to  be  governed.  '  The  subject  to  be  regulated 
is  commerce.  Is  that  limited  to  traffic,  to  buying  and 
selling,  or  the  interchange  of  commodities  ?  Or  does 
it  comprehend  navigadon  and  intercourse  ?  If  the  for- 
mer construction  is  adopted,  then  a  general  term  appli- 


CH.  XV.]      POWERS  OF  CONGRESS COMMERCE.        361 

cable  to  many  objects  is  restricted  to  one  of  its  signifi- 
cations. If  the  latter,  then  a  general  term  is  retained 
in  its  general  sense.  To  adopt  the  former,  without 
some  guiding  grounds  furnished  by  the  context,  or  the 
nature  of  the  power,  would  be  improper.  The  words 
being  general,  the  sense  must  be  general  also,  and  em- 
brace all  subjects  comprehended  under  them,  unless 
there  be  some  obvious  mischief,  or  repugnance  to  other 
clauses  to  limit  them.  In  the  present  case  there  is 
nothing  to  justify  such  a  limitation.  Commerce  un- 
doubtedly is  traffic ;  but  it  is  something  more.  It  is 
intercourse.  It  describes  the  commercial  intercourse 
between  nations,  and  parts  of  nations,  in  all  its  branches; 
and  is  regulated  by  prescribing  rules  for  carrying  on 
that  intercourse.  The  mind  can  scarcely  conceive  a 
system  for  regulating  commerce  between  nations,  which 
shall  exclude  all  laws  concerning  navigation;  which 
shall  be  silent  on  the  admission  of  the  vessels  of  one 
nation  into  the  ports  of  another;  and  be  confined  to 
prescribing  rules  for  the  conduct  of  individuals  in  the 
actual  employment  of  buying  and  selling,  or  barter. 

§511.  If  commerce  does  not  include  navigation, 
the  government  of  the  Union  has  no  direct  power  over 
that  subject,  and  can  make  no  law  prescribing,  what 
shall  constitute  American  vessels,  or  requiring,  that 
they  shall  be  navigated  by  American  seamen.  Yet 
this  power  has  been  exercised  from  the  commence- 
ment of  the  government ;  it  has  been  exercised  with 
the  consent  of  all  America ;  and  it  has  been  always 
understood  to  be  a  commercial  regulation.  The  power 
over  navigation,  and  over  commercial  intercourse,  was 
one  of  the  primary  objects,  for  which  the  people  of 
America  adopted  their  government ;  and  it  is  impossi- 
ble, that  the  convention  should  not  have   understood 

Abr.  46 


362         CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

the  word  "  commerce,"  as  embracing  it.  Indeed,  to 
construe  the  power,  so  as  to  impair  its  efficacy,  would 
defeat  the  very  object,  for  which  it  was  introduced  into 
the  constitution ;  for  there  cannot  be  a  doubt,  that  to 
exclude  navigation  and  intercourse  from  its  scope 
would  be  to  entail  upon  us  all  the  prominent  defects  of 
the  confederation,  and  subject  the  Union  to  the  ill-ad- 
justed systems  of  rival  states,  and  the  oppressive  pre- 
ferences of  foreign  nations  in  favour  of  their  own  navi- 
gation. 

§  512.  The  very  exceptions  found  in  the  constitu- 
tion demonstrate  this ;  for  it  would  be  absurd,  as  well 
as  useless,  to  except  from  a  granted  power  that,  which 
was  not  granted,  or  that,  which  the  words  did  not  com- 
prehend. There  are  plain  exceptions  in  the  constitu- 
tion from  the  power  over  navigation,  and  plain  inhibi- 
tions to  the  exercise  of  that  power  in  a  particular  way. 
Why  should  these  be  made,  if  the  power  itself  was  not 
understood  to  be  granted?  The  clause  already  cited, 
that  no  preference  shall  be  given  by  any  regulation  of 
commerce  or  revenue  to  the  ports  of  one  state  over 
those  of  another,  is  of  this  nature.  This  clause  cannot 
be  understood,  as  applicable  to  those  laws  only,  which 
are  passed  for  purposes  of  revenue,  because  it  is  ex- 
pressly applied  to  commercial  regulations ;  and  the  most 
obvious  preference,  which  can  be  given  to  one  port 
over  another,  relates  to  navigation.  But  the  remaining 
part  of  the  sentence  directly  points  to  navigation.  "  Nor 
shall  vessels,  bound  to  or  from  one  state,  be  obliged  to 
enter,  clear,  or  pay  duties  in  another."  In  short,  our 
whole  system  for  the  encouragement  of  navigation  in 
the  coasting  trade  and  fisheries  is  exclusively  founded 
upon  this  supposition.  Yet  no  one  has  ever  been  bold 
enough  to  question  the  constitutionality  of  the  laws, 
creating  this  system. 


CH.  XV.]    POWERS  OF  CONGRESS COMMERCE.        363 

§  513.  Foreign  and  domestic  intercourse  has  been 
universally  understood  to  be  within  the  reach  of  the 
power.  How,  otherwise,  could  our  systems  of  prohi- 
bition and  non-intercourse  be  defended?  From  what 
other  source  has  been  derived  the  power  of  laying  em- 
bargoes in  a  time  of  peace,  and  without  any  reference 
to  war,  or  its  operations  ?  Yet  this  power  has  been 
universally  admitted  to  be  constitutional,  even  in  times 
of  the  highest  political  excitement.  And  although  the 
laying  of  an  embargo  in  the  form  of  a  perpetual  law  was 
contested,  as  unconstitutional,  at  one  period  of  our  po- 
litical history,  it  was  so,  not  because  an  embargo  was 
not  a  regulation  of  commerce,  but  because  a  perpetual 
embargo  was  an  annihilation,  and  not  a  regulation,  of 
commerce.  It  may,  therefore,  be  safely  affirmed,  that 
the  terms  of  the  constitution  have  at  all  times  been  un- 
derstood to  include  a  power  over  navigation,  as  well  as 
trade,  over  intercourse,  as  well  as  traffic ;  and,  that,  in 
the  practice  of  other  countries,  and  especially  in  our  own, 
there  has  been  no  diversity  of  judgment  or  opinion. 
During  our  whole  colonial  history,  this  was  acted  upon 
by  the  British  parliament,  as  an  uncontested  doctrine. 
That  government  regulated  not  merely  our  traffic  with 
foreign  nations,  but  our  navigation,  and  intercourse,  as 
unquestioned  functions  of  the  power  to  regulate  com- 
merce. 

514  This  power  the  constitution  extends  to 
commerce  with  foreign  nations,  and  among  the  several 
states,  and  with  the  Indian  tribes.  In  regard  to  for- 
eign nations,  it  is  universally  admitted,  that  the  words 
comprehend  every  species  of  commercial  intercourse. 
No  sort  of  trade  or  intercourse  can  be  carried  on  be- 
tween this  country  and  another,  to  which  it  does  not 
extend.     Commerce,  as  used  in  the  constitution,  is  a 


364     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

unit,  every  part  of  which  is  indicated  by  the  term.  If 
this  be  its  admitted  meaning  in  its  application  to  foreign 
nations,  it  must  carry  the  same  meaning  throughout  the 
Skentence.  The  next  words  are  "among  the  several 
states."  The  word  "among"  means  intermingled 
with.  A  thing,  which  is  among  others,  is  intermingled 
with  them.  Commerce  among  the  states  cannot  stop 
at  the  external  boundary  line  of  each  state,  but  may  be 
introduced  into  the  interior.  It  does  not,  indeed,  com- 
prehend any  commerce,  which  is  purely  internal,  be- 
tween man  and  man  in  a  single  state,  or  between  dif- 
ferent parts  of  the  same  state,  and  not  extending  to,  or 
affecting  other  states.  Commerce  among  the  states 
means,  commerce,  which  concerns  more  states  than  one. 
It  is  not  an  apt  phrase  to  indicate  the  mere  interior 
traffic  of  a  single  state.  The  completely  internal  com- 
merce of  a  state  may  be  properly  considered,  as  reserv- 
ed to  the  state  itself. 

§  515.  The  importance  of  the  power  of  regulating 
commerce  among  the  states,  for  the  purposes  of  the 
Union,  is  scarcely  less,  than  that  of  regulating  it  with 
foreign  states.  A  very  material  object  of  this  power  is 
the  relief  of  the  states,  which  import  and  export  through 
other  states,  from  the  levy  of  improper  contributions  on 
them  by  the  latter.  If  each  state  were  at  liberty  to 
regulate  the  trade  between  state  and  state,  it  is  easy  to 
foresee,  that  ways  would  be  found  out  to  load  the  articles 
of  import  and  export,  during  their  passage  through  the 
jurisdiction,  with  duties,  which  should  fall  on  the  makers 
of  the  latter,  and  the  consumers  of  the  former.  The 
experience  of  the  American  states  during  the  confed- 
eration abundantly  establishes,  that  such  arrangements 
could  be,  and  would  be  made  under  the  stimulating  in- 
fluence of  local  interests,  and  the  desire  of  undue  gain. 


CH.  XV.]    POWERS  OF  CONGRESS COMMERCE.        365 

Instead  of  acting  as  a  nation  in  regard  to  foreign  pow- 
ers, the  states  individually  commenced  a  system  of 
restraint  upon  each  other,  whereby  the  interests  of  for- 
eign powers  were  promoted  at  their  expense.  When 
one  state  imposed  high  duties  on  the  goods  or  vessels 
of  a  foreign  power  to  countervail  the  regulations  of 
such  powers,  the  next  adjoining  states  imposed  lighter 
duties  to  invite  those  articles  into  their  ports,  that  they 
might  be  transferred  thence  into  the  other  states,  se- 
curing the  duties  to  themselves.  This  contracted  policy 
in  some  of  the  states  was  soon  counteracted  by  others. 
Restraints  were  immediately  laid  on  such  commerce 
by  the  suffering  states  ;  and  thus  a  state  of  affairs  dis- 
orderly and  unnatural  grew  up,  the  necessary  tendency 
of  which  was  to  destroy  the  Union  itself.  The  history 
of  other  nations,  also,  furnishes  the  same  admonition. 
In  Switzerland,  where  the  Union  is  very  sHght,  it  has 
been  found  necessary  to  provide,  that  each  canton  shall 
be  obliged  to  allow  a  passage  to  merchandise  through 
its  jurisdiction  into  other  cantons  without  any  augmen- 
tation of  tolls.  In  Germany,  it  is  a  law  of  the  empire, 
that  the  princes  shall  not  lay  tolls  on  customs  or  bridges, 
rivers,  or  passages,  without  the  consent  of  the  emperor 
and  diet.  But  these  regulations  are  but  imperfectly 
obeyed ;  and  great  public  mischiefs  have  consequently 
followed.  Indeed,  without  this  power  to  regulate 
commerce  among  the  states,  the  power  of  regulating 
foreign  commerce  would  be  incomplete  and  ineffectual. 
The  very  laws  of  the  Union  in  regard  to  the  latter, 
whether  for  revenue,  for  restriction,  for  retaliation,  or 
for  encouragement  of  domestic  products  or  pursuits, 
might  be  evaded  at  pleasure,  or  rendered  impotent. 
In  short,  in  a  practical  view,  it  is  impossible  to  separate 
the  regulation  of  foreign  commerce  and  domestic  com- 


366 


CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 


merce  among  the  states  from  each  other.  The  same 
public  policy  applies  to  each ;  and  not  a  reason  can  be 
assigned  for  confiding  the  power  over  the  one,  which 
does  not  conduce  to  estabUsh  the  propriety  of  conced- 
ing the  power  over  the  other. 

^516.  The  next  inquiry  is,  whether  this  power  to 
regulate  commerce  is  exclusive  of  the  same  power 
in  the  states,  or  is  concurrent  with  it.  It  has  been 
settled  upon  the  most  solemn  deliberation,  that  the 
power  is  exclusive  in  the  government  of  the  United 
States.  The  reasoning,  upon  which  this  doctrine  is 
founded,  is  to  the  following  effect.  The  power  to  reg- 
ulate commerce  is  general  and  unlimited  in  its  terms. 
The  full  power  to  regulate  a  particular  subject  implies 
the  whole  power,  and  leaves  no  residuum,  A  grant  of 
the  whole  is  incompatible  with  the  existence  of  a  right 
in  another  to  any  part  of  it.  A  grant  of  a  power  to 
regulate  necessarily  excludes  the  action  of  all  others, 
who  would  perform  the  same  operation  on  the  same 
thing.  Regulation  is  designed  to  indicate  the  entire 
result,  applying  to  those  parts,  which  remain  as  they 
w^ere,  as  well  as  to  those,  which  are  altered.  It  pro- 
duces a  uniform  whole,  which  is  as  much  disturbed  and 
deranged  by  changing,  what  the  regulating  power  de- 
signs to  have  unbounded,  as  that,  on  which  it  has 
operated. 

§  517.  The  power  to  regulate  commerce  is  not  at 
all  like  that  to  lay  taxes.  The  latter  may  well  be  con- 
current, while  the  former  is  exclusive,  resulting  from 
the  different  nature  of  the  two  powers.  The  power  of 
congress  in  laying  taxes  is  not  necessarily,  or  naturally 
inconsistent  with  that  of  the  states.  Each  may  lay  a  tax 
on  the  same  property,  without  interfering  with  the  action 
of  the  other ;  for  taxation  is  but  taking  small  portions 


CH.  XV.]    POWERS  OF  CONGRESS COMMERCE.        367 

from  the  mass  of  property,  which  is  susceptible  of  almost 
infinite  division.  In  imposing  taxes  for  state  purposes, 
a  state  is  not  doing,  what  congress  is  empowered  to  do. 
Congress  is  not  empowered  to  tax  for  those  purposes, 
which  are  within  the  exclusive  province  of  the  states. 
When,  then,  each  government  exercises  the  power  of 
taxation,  neither  is  exercising  the  power  of  the  other. 
But  when  a  state  proceeds  to  regulate  commerce  with 
foreign  nations,  or  among  the  several  states,  it  is  exer- 
cising the  very  power,  which  is  granted  to  congress ; 
and  is  doing  the  very  thing,  which  congress  is  autho- 
rized to  do.  There  is  no  analogy,  then,  between  the 
power  of  taxation,  and  the  power  of  regulating  com- 
merce. 

^518.  Nor  can  any  power  be  inferred  in  the  states 
to  regulate  commerce  from  other  clauses  in  the  consti- 
tution, or  the  acknowledged  rights  exercised  by  the 
states.  The  constitution  has  prohibited  the  states  from 
laying  any  impost  or  duty  on  imports  or  exports  ;  but 
this  does  not  admit,  that  the  state  might  otherwise  have 
exercised  the  power,  as  a  regulation  of  commerce.  The 
laying  of  such  imposts  and  duties  may  be,  and  indeed 
often  is  used,  as  a  mere  regulation  of  commerce,  by 
governments  possessing  that  power.  But  the  laying 
of  such  imposts  and  duties  is  as  certainly,  and  more 
usually,  a  right  exercised  as  a  part  of  the  power  to  lay 
taxes  ;  and  with  this  latter  power  the  states  are  clearly 
entrusted.  So,  that  the  prohibition  is  an  exception  from 
the  acknowledged  power  of  the  state  to  lay  taxes,  and 
not  from  the  questionable  power  to  regulate  commerce. 
Indeed,  the  constitution  treats  these  as  distinct  and  in- 
dependent powers.  The  same  remarks  apply  to  a  duty 
on  tonnage. 

^  519.  Nor  do   the  acknowledged  powers  of  the 


368     CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

States  over  certain  subjects,  having  a  connexion  v^^ith 
commerce,  in  any  degree  impugn  this  reasoning.  These 
powers  are  entirely  distinct  in  their  nature  from  that  to 
regulate  commerce ;  and  though  the  same  means  may 
be  resorted  to,  for  the  purpose  of  carrying  each  of  these 
powers  into  effect,  this  by  no  just  reasoning  furnishes 
any  ground  to  assert,  that  they  are  identical.  Among 
these,  are  inspection  laws,  health  laws,  laws  regulating 
turnpikes,  roads,  and  ferries,  all  of  which,  when  exer- 
cised by  a  state,  are  legitimate,  arising  from  the 
general  powers  belonging  to  it,  unless  so  far  as  they 
conflict  with  the  powers  delegated  to  congress.  They 
are  not  so  much  regulations  of  commerce,  as  of  police ; 
and  may  truly  be  said  to  belong,  if  at  all  to  commerce, 
to  that  which  is  purely  internal.  The  pilotage  laws  of 
the  states  may  fall  under  the  same  description.  But 
they  have  been  adopted  by  congress;  and  without  ques- 
tion are  controllable  by  it. 

§  520.  The  power  in  congress,  then,  being  exclu- 
sive, no  state  is  at  liberty  to  pass  any  laws  imposing  a 
tax  upon  importers,  importing  goods  from  foreign  coun- 
tries, or  from  other  states.  It  is  wholly  immaterial 
whether  the  tax  be  laid  on  the  goods  imported,  or  on 
the  person  of  the  importer.  In  each  case,  it  is  a  restric- 
tion of  the  right  of  commerce,  not  conceded  to  the  states. 
As  the  power  of  congress  to  regulate  commerce  reaches 
the  interior  of  a  state,  it  might  be  capable  of  authoriz- 
ing the  sale  of  the  articles,  which  it  introduces.  Com- 
merce is  intercourse ;  and  one  of  its  most  ordinary 
ingredients  is  traffic.  It  is  inconceivable,  that  the 
power  to  authorize  traffic,  when  given  in  the  most  com- 
prehensive terms,  with  the  intent,  that  its  efficacy 
should  be  complete,  should  cease  at  the  point,  when 
its  continuance  is  indispensable  to  its  value.     To  what 


CH.  XV.]     POWERS  OF  CONGRESS COMMERCE.        369 

purpose  should  the  power  to  allow  importation  be  given, 
unaccompanied  with  the  power  to  authorize  the  sale  of 
the  thing  imported  ?  Sale  is  the  object  of  importation; 
and  it  is  an  essential  ingredient  of  that  intercourse,  of 
which  importation  constitutes  a  part.  As  congress  have 
the  right  to  authorize  importation,  they  must  have  a  right 
to  authorize  the  importer  to  sell.  What  would  be 
the  language  of  a  foreign  government,  which  should  be 
informed,  that  its  merchants  after  importation  were 
forbidden  to  sell  the  merchandize  imported?  What 
answer  could  the  United  States  give  lo  the  complaints 
and  just  reproaches,  to  which  such  extraordinary  con- 
duct would  expose  them  ?  No  apology  could  be  re- 
ceived, or  offered.  Such  a  state  of  things  would  anni- 
hilate commerce.  It  is  no  answer,  that  the  tax  may  be 
moderate ;  for,  if  the  power  exists  in  the  states,  it  may 
be  carried  to  any  extent  they  may  choose.  If  it  does 
not  exist,  every  exercise  of  it  is,  pro  tanto,  a  violation  of 
the  power  of  congress  to  regulate  commerce. 

§  521.  In  the  next  place,  to  what  extent,  and  for 
what  objects  and  purposes  the  power  to  regulate  com- 
merce may  be  constitutionally  applied. 

^  522.  And  first,  among  the  states.  It  is  not  doubt- 
ed, that  it  extends  to  the  reguladon  of  navigation,  and 
to  the  coasting  trade  and  fisheries,  within,  as  well  as 
without  any  state,  wherever  it  is  connected  with  the 
commerce  or  intercourse  with  any  other  state,  or  with 
foreign  nations.  It  extends  to  the  regulation  and  gov- 
ernment of  seamen  on  board  of  American  ships  ;  and 
to  conferring  privileges  upon  ships  built  and  owned  in 
the  United  States  in  domestic,  as  well  as  in  foreign  trade. 
It  extends  to  quarantine  laws,  and  pilotage  laws,  and 
wrecks  of  the  sea.  It  extends,  to  the  navigation  of 
vessels    engaged  in    carrying    passengers,    (whether 

Abr.  47 


370  CONSTITUTION  OF  THE  U,  STATES.      [bOOK  III. 

steam  vessels,  or  of  any  other  description,)  as  well  as 
to  the  navigation  of  vessels  engaged  in  traffic  and  gen- 
eral coasting  business.  It  extends  to  the  laying  of 
embargoes,  as  vt^ell  on  domestic,  as  on  foreign  voyages. 
It  extends  to  the  construction  of  light-houses,  the  placing 
of  buoys  and  beacons,  the  removal  of  obstructions 
to  navigation  in  creeks,  rivers,  sounds,  and  bays,  and 
the  establishment  of  securities  to  navigation  against  the 
inroads  of  the  ocean.  It  extends  also  to  the  designa- 
tion of  particular  ports  of  entry  and  delivery  for  the 
purposes  of  commerce.  The  power  has  been  actually 
exerted  for  these  purposes  by  the  national  government 
under  systems  of  laws,  some  of  which  are  almost  co- 
eval with  the  establishment  of  the  constitution ;  and 
these  laws  have  continued  unquestioned  unto  our  day, 
if  not  to  the  utmost  range  of  their  reach,  at  least  to  that 
of  their  ordinary  application. 

^  523.  Secondly.  Many  hke  applications  of  the 
power  may  be  traced  in  the  regulations  of  the  com- 
merce of  the  United  States  with  foreign  nations.  It  has 
also  been  employed  sometimes  for  the  purpose  of 
revenue  ;  sometimes  for  the  purpose  of  prohibition ; 
sometimes  for  the  purpose  of  retaliation  and  commer- 
cial reciprocity  ;  sometimes  to  lay  embargoes ;  some- 
times to  encourage  domestic  navigation,  and  the  ship- 
ping and  mercantile  interest  by  bounties,  by  discriminat- 
ing duties,  and  by  special  preferences  and  privileges ; 
and  sometimes  to  regulate  intercourse  with  a  view  to 
mere  political  objects,  such  as  to  repel  aggressions, 
increase  the  pressure  of  war,  or  vindicate  the  rights  of 
neutral  sovereignty.  In  all  these  cases,  the  right  and 
duty  have  been  conceded  to  the  national  government  by 
the  unequivocal  voice  of  the  people. 


CH.  XV.]    POWERS  OF  CONGRESS COMMERCE.        371 

§  524.  A  question  has  been  recently  made,  whether 
congress  have  a  constitutional  authority  to  apply  the 
power  to  regulate  commerce  for  the  purpose  of  encour- 
aging and  protecting  domestic  manufactures.  It  is  not 
denied,  that  congress  may,  incidentally,  in  its  arrange- 
ments for  revenue,  or  to  countervail  foreign  restrictions, 
encourage  the  growth  of  domestic  manufactures.  But 
it  is  earnestly  and  strenuously  insisted,  that,  under  the 
colour  of  regulating  commerce,  congress  have  no  right 
permanently  to  prohibit  any  importations,  or  to  tax 
them  unreasonably  for  the  purpose  of  securing  the  home 
market  to  the  domestic  manufacturer,  as  they  thereby 
destroy  the  commerce  entrusted  to  them  to  regulate,  and 
foster  an  interest,  with  which  they  have  no  constitutional 
power  to  interfere.  This  opinion  constitutes  the  lead- 
ing doctrine  of  several  states  in  the  Union  at  the  pres- 
ent moment ;  and  is  asserted  by  them  to  be  vital  to 
the  existence  of  the  Union. 

§  525.  The  reasoning,  by  which  the  doctrine  is 
maintained,  that  the  power  to  regulate  commerce  can- 
not be  constitutionally  applied,  as  a  means,  directly  to 
encourage  domestic  manufactures,  has  been  already 
in  part  adverted  to  in  considering  the  extent  of  the 
power  to  lay  taxes.  It  is  proper,  however,  to  present 
it  entire  in  its  present  connexion.  It  is  to  the  following 
effect. — The  constitution  is  one  of  limited  and  enu- 
merated powers ;  and  none  of  them  can  be  rightfully 
exercised  beyond  the  scope  of  the  objects,  specified  in 
those  powers.  It  is  not  disputed,  that,  when  the  power 
is  given,  all  the  appropriate  means  to  carry  it  into  effect 
are  included.  Neither  is  it  disputed,  that  the  laying  of 
duties  is,  or  may  be  an  appropriate  means  of  regulating 
commerce.  But  the  question  is  a  very  different  one, 
whether,  under  pretence  of  an  exercise  of  the  power  to 


372    CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

regulate  commerce,  congress  may  in  fact  impose  duties 
for  objects  wholly  distinct  from  commerce.  The  ques- 
tion comes  to  this,  whether  a  power,  exclusively  for  the 
regulation  of  commerce,  is  a  power  for  the  regula- 
tion of  manufactures?  The  statement  of  such  a  ques- 
tion would  seem  to  involve  its  own  answer.  Can  a 
power,  granted  for  one  purpose,  be  transferred  to  anoth- 
er? If  it  can,  where  is  the  limitation  in  the  constitu- 
tion ?  Are  not  commerce  and  manufactures  as  distinct, 
as  commerce  and  agriculture?  If  they  are,  how  can  a 
power  to  regulate  one  arise  from  a  power  to  regulate 
the  other?  It  is  true,  that  commerce  and  manufactures 
are,  or  may  be,  intimately  connected  with  each  other. 
A  regulation  of  one  may  injuriously  or  beneficially  af- 
fect the  other.  But  this  is  not  the  point  in  controversy. 
It  is,  whether  congress  have  a  right  to  regulate  that, 
which  is  not  committed  to  them,  under  a  power,  which  is 
committed  io  them,  simply  because  there  is,  or  maybe  an 
intimate  connexion  between  the  powers.  If  this  were 
admitted,  the  enumeration  of  the  powers  of  congress 
would  be  wholly  unnecessary  and  nugatory.  Agricul- 
ture, colonies,  capital,  machinery,  the  wages  of  labour, 
the  profits  of  stock,  the  rents  of  land,  the  punctual  per- 
formance of  contracts,  and  the  diffusion  of  knowledge 
would  all  be  within  the  scope  of  the  power ;  for  all  of 
them  bear  an  intimate  relation  to  commerce.  The 
result  would  be,  that  the  powers  of  congress  would 
embrace  the  widest  extent  of  legislative  functions,  to 
the  utter  demohtion  of  all  constitutional  boundaries  be- 
tween the  state  and  national  governments.  When 
duties  are  laid,  not  for  purposes  ©f  revenue,  but  of  re- 
taUation  and  restriction,  to  countervail  foreign  restric- 
tions, they  are  strictly  within  the  scope  of  the  power, 
as  a  regulation  of  commerce.     But  when  laid  to  en- 


CH.  XV.]    POWERS  OF  CONGRESS COMMERCE.        373 

courage  manufactures,  they  have  nothing  to  do  with  it. 
The  power  to  regulate  manufactures  is  no  more  confid- 
ed to  congress,  than  the  power  to  interfere  with  the 
systems  of  education,  the  poor  laws,  or  the  road  laws 
of  the  states.  It  is  notorious,  that,  in  the  convention, 
an  attempt  was  made  to  introduce  into  the  constitution 
a  power  to  encourage  manufactures ;  but  it  was  with- 
held. Instead  of  granting  the  power  to  congress,  per- 
mission was  given  to  the  states  to  impose  duties,  with 
the  consent  of  that  body,  to  encourage  their  own  man- 
ufactures; thus,  in  the  true  spirit  of  justice,  impos- 
ing the  burthen  on  those,  who  v/ere  to  be  benefited. 
It  is  true,  that  congress  may,  incidentally,  w^hen  laying 
duties  for  revenue,  consult  the  other  interests  of  the 
country.  They  may  so  arrange  the  details,  as  indirect- 
ly to  aid  manufactures.  And  this  is  the  whole  extent, 
to  which  congress  have  ever  gone  until  the  tariffs,  which 
have  given  rise  to  the  present  controversy.  The  former 
precedents  of  congress  are  not,  even  if  admitted  to  be 
authoritative,  applicable  to  the  question  now  presented. 
§  526.  The  reasoning  of  those,  who  maintain  the 
doctrine,  that  congress  has  authority  to  apply  the  power 
to  regulate  commerce  to  the  purpose  of  protecting  and 
encouraging  domestic  manufactures,  is  to  the  following 
effect.  The  power  to  regulate  commerce,  being  in  its 
terms  unhmited,  includes  all  means  appropriate  to  the 
end,  and  all  means,  which  have  been  usually  exerted 
under  the  power.  No  one  can  doubt  or  deny,  that  a 
power  to  regulate  trade  involves  a  power  to  tax  it.  It 
is  a  familiar  mode,  recognised  in  the  practice  of  all 
nations,  and  was  known  and  admitted  by  the  United 
States,  while  they  were  colonies,  and  has  ever  since 
been  acted  upon  without  opposition  or  question.  The 
American  colonies  wholly  denied  the  authority  of  the 


374         CONSTITUTION  OF  THE  U.  STATES.      [BOOK  III. 

British  parliament  to  tax  them,  except  as  a  regulation 
of  commerce ;  but  they  admitted  this  exercise  of  power, 
as  legitimate  and  unquestionable.  The  distinction  was 
with  difficulty  maintained  in  practice  between  laws  for 
the  regulation  of  commerce  by  way  of  taxation,  and 
laws,  which  were  made  for  mere  monopoly,  or  restric- 
tion, when  they  incidentally  produced  revenue.  And 
it  is  certain,  that  the  main  and  admitted  object  of  par- 
11.  mentary  regulations  of  trade  with  the  colonies  was 
the  encouragement  of  manufactures  in  Great-Britain. 
Other  nations  have,  in  like  manner,  for  like  purposes 
exercised  the  like  power.  So,  that  there  is  no  novelty 
in  the  use  of  the  power,  and  no  stretch  in  the  range  of 
the  power. 

§  527.  Indeed,  the  advocates  of  the  opposite  doc- 
trine admit,  that  the  power  may  be  applied,  so  as  inci- 
dentally to  give  protection  to  manufactures,  when  rev- 
enue is  the  principal  design ;  and  that  it  may  also  be 
apphed  to  countervail  the  injurious  regulations  of  foreign 
powers,  when  there  is  no  design  of  revenue.  These 
concessions  admit,  then,  that  the  regulations  of  com- 
merce are  not  wholly  for  purposes  of  revenue,  or  wholly 
confined  to  the  purposes  of  commerce,  considered  per 
se.  If  this  be  true,  then  other  objects  may  enter  into 
commercial  regulations ;  and  if  so,  what  restraint  is 
there,  as  to  the  nature  or  extent  of  the  objects,  to  which 
they  may  reach,  which  does  not  resolve  itself  into  a 
question  of  expediency  and  policy?  It  may  be  ad- 
mitted, that  a  power,  given  for  one  purpose,  cannot  be 
perverted  to  purposes  wholly  opposite,  or  beside  its 
legitimate  scope.  But  what  perversion  is  there  in  ap- 
plying a  power  to  the  very  purposes,  to  which  it  has 
been  usually  applied  7  Under  such  circumstances,  does 
not  the  grant  of  the  power  without  restriction  concede, 


CH.  XV.]    POWERS  OF  CONGRESS COMMERCE.        375 

that  it  may  be  legitimately  applied  to  such  purposes  1 
If  a  different  intent  had  existed,  would  not  that  intent 
be  manifested  by  some  corresponding  limitation  ? 

^  528.  The  terms,  then,  of  the  constitution  are  suf- 
ficiently large  to  embrace  the  power ;  the  practice  of 
other  nations,  and  especially  of  Great-Britain  and  of  the 
American  states,  has  been  to  use  it  in  this  manner ; 
and  this  exercise  of  it  was  one  of  the  very  grounds, 
upon  which  the  establishment  of  the  constitution  was 
urged  and  vindicated.  The  argument,  then,  in  its 
favour  would  seem  to  be  absolutely  irresistible  under 
this  aspect.  But  there  are  other  very  weighty  consid- 
erations, which  enforce  it. 

§  529.  In  the  first  place,  if  congress  does  not  pos- 
sess the  power  to  encourage  domestic  manufactures  by 
regulations  of  commerce,  the  power  is  annihilated  for 
the  whole  nation.  The  states  are  deprived  of  it.  They 
have  made  a  voluntary  surrender  of  it ;  and  yet  it  ex- 
ists not  in  the  national  government.  It  is  then  a  mere 
nonentity.  Such  a  policy,  voluntarily  adopted  by  a 
free  people,  in  subversion  of  some  of  their  dearest  rights, 
and  interests,  would  be  most  extraordinary  in  itself, 
without  any  assignable  motive  or  reason  for  so  great  a 
sacrifice,  and  utterly  without  example  in  the  history  of 
the  world.  No  man  can  doubt,  that  domestic  agricul- 
ture and  manufactures  may  be  most  essentially  promot- 
ed and  protected  by  regulations  of  commerce.  No 
man  can  doubt,  that  it  is  the  most  usual,  and  generally 
the  most  efficient  means  of  producing  those  results. 
No  man  can  question,  that  in  these  great  objects  the 
different  states  of  America  have  as  deep  a  stake,  and  as 
vital  interests,  as  any  other  nation.  Why,  then,  should 
the  power  be  surrendered  and  annihilated  1  It  would 
produce  the  most  serious  mischiefs  at  home ;  and  would 


376   CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

secure  the  most  complete  triumph  over  us  by  foreign 
nations.     It  would  introduce  and  perpetuate  national 
debility,  if  not  national  ruin.     A  foreign  nation  might,  as 
a  conqueror,  impose  upon  us  this  restraint,  as  a  badge 
of  dependence,  and  a  sacrifice  of  sovereignty,  to  sub- 
serve its  own  interests ;  but  that  we  should  impose  it 
upon  ourselves,  is  inconceivable.     The  achievement  of 
our  independence  was  almost  worthless,  if  such  a  sys- 
tem was  to  be  pursued.     It  would  be  in  effect  a  per- 
petuation of  that  very  system  of  monopoly,  of  encour- 
agement of   foreign  manufactures,  and  depression   of 
domestic  industry,  which  was  so  much  complained  of 
during  our  colonial  dependence ;  and  which  kept  all 
America  in  a  state  of  poverty,  and  slavish  devotion  to 
British  interests.     Under  such  circumstances,  the  con- 
stitution would  be  established,   not  for  the   purposes 
avowed  in  the  preamble,  but  for  the  exclusive  benefit 
and  advancement  of  foreign  nations,  to  aid  their  manu- 
factures, and  sustain  their  agriculture.     Suppose  cotton, 
rice,  tobacco,  wheat,  corn,  sugar,  and  other  raw  materials 
could  be,  or  should  hereafter  be,  abundantly  produced 
in  foreign  countries,  under  the  fostering  hands  of  their 
governments,  by  bounties  and  commercial  regulations, 
so  as  to  become  cheaper  with  such  aids  than  our  own  ; 
are  all  our  markets  to  be  opened  to  such  products  with- 
out any  restraint,  simply  because  w^e  may  not  want 
revenue,  to  the  ruin  of  our  products  and  industry  ?     Is 
America  ready  to  give  every  thing  to  Europe,  without 
any  equivalent ;  and  take  in  return  whatever  Europe 
may  choose  to  give,  upon  its  own  terms  7     The  most 
servile  provincial  dependence  could  not  do  more  evils. 
Of  what  consequence  would  it  be,  that  the  national 
government  could  not  tax  our  exports,  if  foreign  gov- 
ernments might  tax  them  to  an  unlimited  extent,  so  as 


CH.  XV.]    POWERS  OF  CONGRESS COMMERCE.         377 

to  favour  their  own,  and  thus  to  supply  us  with  the 
same  articles-  by  the  overwhelming  depression  of  our 
own  by  foreign  taxation  1  When  it  is  recollected,  with 
what  extreme  discontent  and  reluctant  obedience  the 
British  colonial  restrictions  were  enforced  in  the  manu- 
facturing and  navigating  states,  while  they  were  colo- 
nies, it  is  incredible,  that  they  should  be  wilhng  to  adopt 
a  government,  which  should,  or  might  entail  upon  them 
equal  evils  in  perpetuity.  Commerce  itself  would  ulti- 
mately be  as  great  a  sufferer  by  such  a  system,  as  the 
other  domestic  interests.  It  would  languish,  if  it  did 
not  perish.  Let  any  man  ask  himself,  if  New-England, 
or  the  Middle  states,  would  ever  have  consented  to  rat- 
ify a  constitution,  which  would  afford  no  protection  to 
their  manufactures  or  home  industry.  If  the  constitu- 
tion was  ratified  under  the  beUef,  sedulously  propagated 
on  all  sides,  that  such  protection  was  afforded,  would  it 
not  now  be  a  fraud  upon  the  whole  people  to  give  a 
different  construction  to  its  powers  ? 

^  530.  Passing  by  these  considerations,  let  the 
practice  of  the  government  and  the  doctrines  maintain- 
ed by  those,  who  have  administered  it,  be  deliberately 
examined ;  and  they  \n\\  be  found  to  be  in  entire  con- 
sistency with  this  reasoning.  The  very  first  congress, 
that  ever  sat  under  the  constitution,  composed  in  a  con- 
siderable degree  of  those,  who  had  framed,  or  assisted 
in  the  discussion  of  its  provisions  in  the  state  conven- 
tions, deUberately  adopted  this  view  of  the  power. 
And  what  is  most  remarkable,  upon  a  subject  of  dee]) 
interest  and  excitement,  which  at  the  time  occasioned 
long  and  vehement  debates,  not  a  single  syllable  of 
doubt  was  breathed  from  any  quarter  against  the  con- 
stitutionality of  protecting  agriculture  and  manufactures 
by  laying  duties,  although  the  intention  to  protect,  and 

Abr.  48 


378     CONSTITUTION  OF  THE  U,  STATES.  [bOOK  III. 

encourage  them  was  constantly  avowed.  Nay,  it  was 
contended  to  be  a  paramount  duty,  upon  the  faithful 
fulfilment  of  which  the  constitution  had  been  adopted, 
and  the  omission  of  which  would  be  a  political  fraud, 
without  a  whisper  of  dissent  from  any  side.  It  was 
demanded  by  the  people  from  various  parts  of  the 
Union  ;  and  was  resisted  by  none.  Yet,  state  jealousy 
was  never  more  alive  than  at  this  period,  and  state  in- 
terests never  more  actively  mingled  in  the  debates  of 
congress.  The  two  great  parties,  which  afterwards  so 
much  divided  the  country  upon  the  question  of  a  libe- 
ral and  strict  construction  of  the  constitution,  were  then 
distinctly  formed,  and  proclaimed  their  opinions  with 
firmness  and  freedom.  If,  therefore,  there  had  been  a 
point  of  doubt,  on  which  to  hang  an  argument,  it  can- 
not be  questioned,  but  that  it  would  have  been  brought 
into  the  array  of  opposition.  Such  a  silence,  under 
such  circumstances,  is  most  persuasive  and  convinc- 
ing. 

§  531.  If  ever,  therefore,  contemporaneous  exposi- 
tion, and  the  uniform  and  progressive  operations  of 
the  government  itself  in  all  its  departments,  can  be  of 
any  weight  to  setde  the  construction  of  the  constitution, 
there  never  has  been,  and  there  never  can  be  more 
decided  evidence  in  favour  of  the  power,  than  is  fur- 
nished by  the  history  of  our  national  laws  for  the  en- 
couragement of  domestic  agriculture  and  manufactures. 
To  resign  an  exposition  so  sanctioned,  would  be  to  de- 
liver over  the  country  to  interminable  doubts ;  and  to 
make  the  constitution,  not  a  written  system  of  govern- 
ment, but  a  false  and  delusive  text,  upon  which  every 
successive  age  of  speculatists  and  statesmen  might 
build  any  system,  suited  to  their  own  views  and  opin- 
ions.    But  if  it  be  added  to  this,  that  the  constitution 


CH.  XV.]    POWERS  OF  CONGRESS  —  COMMERCE.        379 

gives  the  power  in  the  most  unlimited  terms,  and 
neither  assigns  motives,  nor  objects  for  its  exercise ; 
but  leaves  these  wholly  to  the  discretion  of  the  legisla- 
ture, acting  for  the  common  good,  and  the  general  in- 
terests ;  the  argument  in  its  favour  becomes  as  abso- 
lutely irresistible,  as  any  demonstration  of  a  moral  or 
poUtical  nature  ever  can  be.  Without  such  a  power, 
the  government  would  be  absolutely  worthless,  and 
made  merely  subservient  to  the  policy  of  foreign  nations, 
incapable  of  self-protection  or  self-support ;  with  it, 
the  country  will  have  a  right  to  assert  its  equality,  and 
dignity,  and  sovereignty  among  the  other  nations  of  the 
earth. 

^  532.  The  power  of  congress  also  extends  to  regu- 
late commerce  with  the  Indian  tribes.  This  power  was 
not  contained  in  the  first  draft  of  the  constitution.  It 
was  afterwards  referred  to  the  committee  on  the  con- 
stitution (among  other  propositions)  to  consider  the  pro- 
priety of  giving  to  congress  the  power  "  to  regulate 
affairs  with  the  Indians,  as  well  within,  as  without  the 
limits  of  the  United  States."  And,  in  the  revised  draft, 
the  committee  reported  the  clause,  "  and  with  the  In- 
dian Tribes,"  as  it  now  stands. 

^  533.  Antecedently  to  the  American  Revolution 
the  authority  to  regulate  trade  and  intercourse  with  the 
Indian  tribes,  whether  they  were  within,  or  without 
the  boundaries  of  the  colonies,  was  understood  to  be- 
long to  the  prerogative  of  the  British  crown.  And 
after  the  American  Revolution,  the  like  power  would 
naturally  fall  to  the  federal  government,  with  a  view 
to  the  general  peace  and  interest  of  all  the  states. 
Two  restrictions,  however,  upon  the  power  were 
incorporated  with  it  into  the  confederation,  which 
occasioned  endless  embarrassments  and  doubts.     The 


380  CONSTIO'UTION  OF  THE  U.  STATES.    [bOOK  III. 

power  of  congress  was  restrained  to  Indians,  not  mem- 
bers of  any  of  the  states  ;  and  was  not  to  be  exercised, 
so  as  to  violate  or  infringe  the  legislative  right  of  any 
state  within  its  own  limits.  What  descriptions  of  In- 
dians were  to  be  deemed  members  of  a  state  was  never 
setded  under  the  confederation;  and  the  question  was 
one  of  frequent  perplexity  and  contention  in  the  federal 
councils.  And  how  the  trade  with  Indians,  though  not 
members  of  a  state,  yet  residing  within  its  legislative 
jurisdiction,  was  to  be  regulated  by  an  external  author- 
ty,  without  so  far  intruding  on  the  internal  rights  of  leg- 
islation, was  absolutely  incomprehensible.  In  this  case, 
as  in  some  other  cases,  the  articles  of  confederation  in- 
considerately endeavoured  to  accomplish  impossibili- 
ties ;  to  reconcile  a  partial  sovereignty  in  the  Union, 
with  complete  sovereignty  in  the  states ;  to  subvert  a 
mathematical  axiom,  by  taking  away  a  part,  and  letting 
the  whole  remain.  The  constitution  has  wisely  disem- 
barrassed the  power  of  these  two  limitations ;  and  has 
thus  given  to  congress,  as  the  only  safe  and  proper  de- 
positary, the  exclusive  power,  which  belonged  to  the 
crown  in  the  ante-revolutionary  times ;  a  power  indis- 
pensable to  the  peace  of  the  states,  and  to  the  just  pre- 
servation of  the  rights  and  territory  of  the  Indians.  In 
the  former  illustrations  of  this  subject,  it  was  stated, 
that  the  Indians,  from  the  first  setdement  of  the  coun- 
try, were  always  treated,  as  distinct,  though  in  some 
sort,  as  dependent  nations.  Their  territorial  rights  and 
sovereignty  were  respected.  They  were  deemed  in- 
capable of  carrying  on  trade  or  intercourse  with  any 
foreign  nations,  or  of  ceding  their  territories  to  them. 
But  their  right  of  self-government  was  admitted ;  and 
they  were  allowed  a  national  existence,  under  the  pro- 
tection of  the  parent  country,  which  exempted  them 


'     CH.  XV.]       POWERS  OF  CONGRESS COJ^MERCE.       381 

from  the  ordinary  operations  of  the  legislative  power  of 
the  colonies.  During  the  revolution  and  afterwards 
they  were  secured  in  the  like  enjoyment  of  their  rights 
and  property,  as  separate  communities.  The  govern- 
ment of  the  United  States,  since  the  constitution,  has 
always  recognised  the  same  attributes  of  dependent 
sovereignty,  as  belonging  to  them,  and  claimed  the 
same  right  of  exclusive  regulation  of  trade  and  inter- 
course with  them,  and  the  same  authority  to  protect 
and  guarantee  their  territorial  possessions,  immunities, 
and  jurisdiction. 

§  634.  The  power,  then,  given  to  congress  to  regu- 
late commerce  with  the  Indian  tribes,  extends  equally 
to  tribes  hving  within  or  without  the  boundaries  of  par- 
ticular states,  and  within  or  without  the  territorial  limits 
of  the  United  States.  It  is  (says  a  learned  commen- 
tator) wholly  immaterial,  whether  such  tribes  continue 
seated  within  the  boundaries  of  a  state,  inhabit  part  of 
a  territory,  or  roam  at  large  over  lands,  to  which  the 
United  States  have  no  claim.  The  trade  with  them  is, 
in  all  its  forms,  subject  exclusively  to  the  regulation  of 
congress.  And  in  this  particular,  also,  we  trace  the 
wisdom  of  the  constitution.  The  Indians,  not  distract- 
ed by  the  discordant  regulations  of  different  states,  are 
taught  to  trust  one  great  body,  whose  justice  they  re- 
spect, and  whose  power  they  fear. 

^  535.  It  has  lately  been  made  a  question,  whether 
an  Indian  tribe,  situated  within  the  territorial  boundaries 
of  a  state,  but  exercising  the  powers  of  government, 
and  national  sovereignty,  under  the  guarantee  of  the 
general  government,  is  a  foreign  state  in  the  sense  of 
the  constitution,  and  as  such  entitled  to  sue  in  the 
courts  of  the  United  States.  Upon  solemn  argument, 
it  has  been  held,  that  such  a  tribe  is  to  be  deemed  po- 


882    CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

litically  a  state ;  that  is,  a  distinct  political  society,  capa- 
ble of  self-government ;  but  it  is  not  to  be  deemed  a 
foreign  state,  in  the  sense  of  the  constitution.  It  is 
rather  a  domestic  dependent  nation.  Such  a  tribe  may 
properly  be  deemed  to  be  in  a  state  of  pupilage ;  and 
its  relation  to  the  United  States  resembles  that  of  a 
ward  to  a  guardian. 


CH.  XVI.]     POWERS  OF  CONG.-NATURALIZATION.      383 


CHAPTER  XVI. 

POWER  OVER  NATURALIZATION   AND  BANKRUPTCY. 

^  536.  The  next  clause  is,  that  congress  "  shall  have 
"power  to  establish  an  uniform  rule  of  naturalization, 
**and  uniform  laws  on  the  subject  of  bankruptcies 
"  throughout  the  United  States." 

^  537.  The  propriety  of  confiding  the  power  to 
estabhsh  an  uniform  rule  of  naturalization  to  the  national 
government  seems  not  to  have  occasioned  any  doubt 
or  controversy  in  the  convention.  For  aught  that  ap- 
pears on  the  journals,  it  was  conceded  without  objec- 
tion. Under  the  confederation,  the  states  possessed 
the  sole  authority  to  exercise  the  power ;  and  the  dis- 
similarity of  the  system  in  different  states  was  general- 
ly admitted,  as  a  prominent  defect,  and  laid  the  founda- 
tion of  many  delicate  and  intricate  questions.  As  the 
free  inhabitants  of  each  state  were  entitled  to  all  the 
privileges  and  immunities  of  citizens  in  all  the  other 
states,  it  followed,  that  a  single  state  possessed  the 
power  of  forcing  upon  other  states,  with  the  enjoy- 
ment of  every  immunity  and  privilege,  any  alien,  whom 
it  might  choose  to  incorporate  into  its  own  society, 
however  repugnant  such  admission  might  be  to  their 
polity,  convenience,  and  even  prejudices.  In  effect 
every  state  possessed  the  power  of  naturalizing  aliens 
in  every  other  state ;  a  power  as  mischievous  in  its  na- 
ture, as  it  was  indiscreet  in  its  actual  exercise.  In  some 
states,  residence  for  a  short  time  might,  and  did  confer 
the  rights  of  citizenship.  In  others,  qualifications 
of  greater   importance    were    required.      An   alien, 


384         CONSTITUTION  OF  THE  U.  STATES.        [bOOK  III. 

therefore,  incapacitated  for  the  possession  of  certain 
rights  by  the  laws  of  the  latter,  might,  by  a  previous 
residence  and  naturalization  in  the  former,  elude  at 
pleasure  all  their  salutary  regulations  for  self-protection. 
Thus,  the  laws  of  a  single  state  were  preposterously 
rendered  paramount  to  the  laws  of  all  the  others,  even 
within  their  own  jurisdiction.  And  it  has  been  remark- 
ed with  equal  truth  and  justice,  that  it  was  owing  to 
mere  casualty,  that  the  exercise  of  this  power  during 
the  confederation  did  not  involve  the  Union  in  the 
most  serious  embarrassments.  There  is  great  wisdom, 
therefore,  in  confiding  to  the  national  government  the 
power  to  establish  a  uniform  rule  of  naturalization 
throughout  the  United  States.  It  is  of  the  deepest  in- 
terest to  the  whole  Union  to  know,  who  are  entided  to 
enjoy  the  rights  of  citizens  in  each  state,  since  they 
thereby,  in  effect,  become  entided  to  the  rights  of  citi- 
zens in  all  the  states.  If  aliens  might  be  admitted  in- 
discriminately to  enjoy  all  the  rights  of  cidzens  at  the 
will  of  a  single  state,  the  Union  might  itself  be  endan- 
gered by  an  influx  of  foreigners,  hostile  to  its  institu- 
tions, ignorant  of  its  powers,  and  incapable  of  a  due 
estimate  of  its  privileges. 

§  538.  It  follows,  from  the  very  nature  of  the  pow- 
er, that  to  be  useful,  it  must  be  exclusive ;  for  a  con- 
current power  in  the  states  would  bring  back  all  the 
evils  and  embarrassments,  which  the  uniform  rule  of 
the  constitution  was  designed  to  remedy.  And  ac- 
cordingly, though  there  was  a  momentary  hesitation, 
when  the  constitution  first  went  into  operadon,  wheth- 
er the  power  might  not  still  be  exercised  by  the  states, 
subject  only  to  the  control  of  congress,  so  far  as  the 
legislation  of  the  latter  extended,  as  the  supreme  law ; 
yet  the  power  is  now  firmJy  established  to  be  exclu- 
sive in  congress. 


CH.  XVI.]    POWERS  OF  CONGRESS-BANKRUPTCY.       385 

^  539.  Before  the  adoption  of  the  constitution  the 
states  severally  possessed  the  exclusive  right,  as  mat- 
ter belonging  to  their  general  sovereignty,  to  p?.ss  laws 
upon  the  subject  of  bankruptcy  and  insolvency.  With- 
out stopping  at  present  to  consider,  what  is  the  precise 
meaning  of  each  of  these  terms,  as  contradistinguished 
from  the  other ;  it  may  be  stated,  that  the  general  ob- 
ject of  all  bankrupt  and  insolvent  laws  is,  on  the  one 
hand,  to  secure  to  creditors  an  appropriation  of  the 
property  of  their  debtors,  pro  tanto,  to  the  discharge  of 
their  debts,  whenever  the  latter  are  unable  to  discharge 
the  whole  amount ;  and,  on  the  other  hand,  to  relieve 
unfortunate  and  honest  debtors  from  perpetual  bondage ' 
to  their  creditors,  either  in  the  shape  of  unhmited  im- 
prisonment to  coerce  payment  of  their  debts,  or  of  an 
absolute  right  to  appropriate  and  monopolize  all  their 
future  earnings.  The  latter  course  obviously  destroys 
all  encouragement  to  industry  and  enterprize  on  the 
part  of  the  unfortunate  debtor,  by  taking  from  him  all 
the  just  rewards  of  his  labour,  and  leaving  him  a  mis- 
erable pittance,  dependent  upon  the  bounty  or  forbear- 
ance of  his  creditors.  The  former  is,  if  possible,  more 
harsh,  severe,  and  indefensible.  It  makes  poverty  and 
misfortune,  in  themselves  sufficiently  heavy  burthens, 
the  subject  or  the  occasion  of  penalties  and  punish- 
ments. Imprisonment,  as  a  civil  remedy,  admits  of  no 
defence,  except  so  far  as  it  is  used  to  coerce  fraudulent 
debtors  to  yield  up  their  present  property  to  their  cred- 
itors, in  discharge  of  their  engagements.  But  when  the 
debtors  have  no  property,  or  have  yielded  up  the  whole 
to  their  creditors,  to  allow  the  latter  at  their  mere  pleas- 
ure to  imprison  them,  is  a  refinement  in  cruelty,  and  an 
indulgence  of  private  passions,  which  could  hardly  find 
apology  in  an  enlightened  despotism ;    and  is  utterly 

Abr.  49 


386        CONSTITUTION  OF  THE  U.  STATES.        [bOOK  III. 

at  war  with  all  the  rights  and  duties  of  free  govern- 
ments. Such  a  system  of  legislation  is  as  unjust,  as  it 
is  unfeeling.  It  is  incompatible  with  the  first  precepts 
of  Christianity  ;  and  is  a  living  reproach  to  the  nations 
of  Christendom,  carrying  them  back  to  the  worst  ages 
of  paganism.  One  of  the  first  duties  of  legislation,  while 
it  provides  amply  for  the  sacred  obligation  of  contracts, 
and  the  remedies  to  enforce  them,  certainly  is,  pari 
passu,  to  relieve  the  unfortunate  and  meritorious  debtor 
from  a  slavery  of  mind  and  body,  which  cuts  him  off 
from  a  fair  enjoyment  of  the  common  benefits  of  society, 
and  robs  his  family  of  the  fruits  of  his  labour,  and  the 
benefits  of  his  paternal  superintendence.  A  national 
government,  which  did  not  possess  this  power  of  legis- 
lation, would  be  htde  worthy  of  the  exalted  functions  of 
guarding  the  happiness,  and  supporting  the  rights  of  a 
free  people.  It  might  guard  them  against  pohtical  op- 
pressions, only  to  render  private  oppressions  more  in- 
tolerable, and  more  glaring. 

^  540.  But  there  are  peculiar  reasons,  independent 
of  these  general  considerations,  why  the  government 
of  the  United  States  should  be  entrusted  with  this 
power.  They  result  from  the  importance  of  preserv- 
ing harmony,  promoting  justice,  and  securing  equality 
of  rights  and  remedies  among  the  citizens  of  all  the 
states.  It  is  obvious,  that  if  the  power  is  exclusively 
vested  in  the  states,  each  one  will  be  at  liberty  to  frame 
such  a  system  of  legislation  upon  the  subject  of  bank- 
ruptcy and  insolvency,  as  best  suits  its  own  local  inter- 
ests, and  pursuits.  Under  such  circumstances  no  uni- 
formity of  system  or  operations  can  be  expected.  One 
state  may  adopt  a  system  of  general  insolvency ;  an- 
other, a  limited  or  temporary  system  ;  one  may  relieve 
from  the  obligation  of  contracts;    another  only  from 


CH.  XVI.]  POWERS  OF  CONGRESS-BANKRUPTCY.       387 

imprisonment;  one  may  adopt  a  still  more  restric- 
tive course  of  occasional  relief;  and  another  may  re- 
fuse to  act  in  any  manner  upon  the  subject.  The 
laws  of  one  state  may  give  undue  preferences  to  one 
class  of  creditors,  as  for  instance,  to  creditors  by  bond, 
or  judgment ;  another  may  provide  for  an  equahty  of 
debts,  and  a  distribution  pro  rata  without  distinction 
among  all.  One  may  prefer  creditors  living  within  the 
state  to  all  living  without ;  securing  to  the  former  an 
entire  priority  of  payment  out  of  the  assets.  Another 
may,  with  a  more  liberal  justice,  provide  for  the  equal 
payment  of  all,  at  home  and  abroad,  without  favour  or 
preference.  In  short,  diversities  of  almost  infinite 
variety  and  objects  may  be  introduced  into  the  local  sys- 
tem, which  may  work  gross  injustice  and  inequality, 
and  nourish  feuds  and  discontents  in  neighbouring 
states.  What  is  here  stated,  is  not  purely  speculative. 
It  has  occurred  among  the  American  states  in  the  most 
offensive  forms,  without  any  apparent  reluctance  or 
compunction  on  the  part  of  the  offending  state.  There 
wall  always  be  found  in  every  state  a  large  mass  of  poli- 
ticians, who  will  deem  it  more  safe  to  consult  their  own 
temporary  interests  and  popularity,  by  a  narrow  system 
of  preferences,  than  to  enlarge  the  boundaries,  so  as  to 
give  to  distant  creditors  a  fair  share  of  the  fortune  of  a 
ruined  debtor.  There  can  be  no  other  adequate  reme- 
dy, than  giving  a  power  to  the  general  government,  to 
introduce  and  perpetuate  a  uniform  system. 

§  541.  In  the  next  place  it  is  clear,  that  no  state 
can  introduce  any  system,  which  shall  extend  beyond 
its  own  territorial  limits,  and  the  persons,  who  are  sub- 
ject to  its  jurisdiction.  Creditors  residing  in  other 
states  cannot  be  bound  by  its  laws ;  and  debts  con- 
tracted in  other  states   are   beyond  the  reach  of  its 


388         CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

legislation.  It  can  neither  discharge  the  obligation  of 
such  contracts,  nor  touch  the  remedies,  which  relate  to 
them  in  any  other  jurisdiction.  So  that  the  most  meri- 
torious insolvent  debtor  will  be  harassed  by  new  suits, 
and  new  litigations,  as  often  as  he  moves  out  of  the 
state  boundaries.  His  whole  property  may  be  absorb- 
ed by  his  creditors  residing  in  a  single  state,  and  he 
may  be  left  to  the  severe  retributions  of  judicial  process 
in  every  other  state  in  the  Union.  Among  a  people, 
whose  general  and  commercial  intercourse  must  be  so 
great,  and  so  constantly  increasing,  as  in  the  United 
States,  this  alone  would  be  a  most  enormous  evil, 
and  bear  with  peculiar  severity  upon  all  the  commer- 
cial states.  Very  few  persons  engaged  in  active  busi- 
ness will  be  without  debtors  or  creditors  in  many  states 
in  the  Union.  The  evil  is  incapable  of  being  redressed 
by  the  states.  It  can  be  adequately  redressed  only 
by  the  power  of  the  Union.  One  of  the  most  pressing 
grievances,  bearing  upon  commercial,  manufacturing, 
and  agricultural  interests  at  the  present  moment,  is  the 
total  want  of  a  general  system  of  bankruptcy.  It  is 
well  known,  that  the  power  has  lain  dormant,  except 
for  a  short  period,  ever  since  the  constitution  was 
adopted ;  and  the  excellent  system,  then  put  into  op- 
eration, was  repealed,  before  it  had  any  fair  trial,  upon 
grounds  generally  believed  to  be  wholly  beside  its  mer- 
its, and  from  causes  more  easily  understood,  than  delib- 
erately vindicated. 

^  542.  In  the  next  place,  the  power  is  important  in 
regard  to  foreign  countries,  and  to  our  commercial 
credit  and  intercourse  with  them.  Unless  the  gen- 
eral government  were  invested  with  authority  to  pass 
suitable  laws,  which  should  give  reciprocity  and  equality 
in  cases  of  bankruptcies  here,  there  would  be  danger, 


CH.  XVI.]    POWERS  OF  CONGRESS-BANKRUPTCY.     389 

that  the  state  legislation  might,  by  undue  domestic 
preferences  and  favours,  compel  foreign  countries  to 
retaliate  ;  and  instead  of  allowing  creditors  in  the  United 
States  to  partake  an  equality  of  benefits  in  cases  of 
bankruptcies,  to  postpone  them  to  all  others.  The 
existence  of  the  power  is,  therefore,  eminently  useful ; 
first,  as  a  check  upon  undue  state  legislation ;  and  sec- 
ondly, as  a  means  of  redressing  any  grievances  sustain- 
ed by  foreigners  in  commercial  transactions. 

^  543.  What  laws  are  to  be  deemed  bankrupt  laws 
within  the  meaning  of  the  constitution  has  been  a  mat- 
ter of  much  forensic  discussion  and  argument.  At- 
tempts have  been  made  to  distinguish  between  bank- 
rupt laws  and  insolvent  laws.  For  example,  it  has 
been  said,  that  laws,  which  merely  liberate  the  person 
of  the  debtor,  are  insolvent  laws,  and  those,  which  dis- 
charge the  contract,  are  bankrupt  laws.  But  it  would 
be  very  difficult  to  sustain  this  distinction  by  any  uni- 
formity of  laws  at  home  or  abroad.  In  some  of  the 
states,  laws,  known  as  insolvent  laws,  discharge  the 
person  only ;  in  others,  they  discharge  the  contract. 
And  if  congress  were  to  pass  a  bankrupt  act,  which 
should  discharge  the  person  only  of  the  bankrupt,  and 
leave  his  future  acquisitions  liable  to  his  creditors,  there 
would  be  great  difficulty  in  saying,  that  such  an  act  was 
not  in  the  sense  of  the  constitution  a  bankrupt  act,  and 
so  within  the  power  of  congress.  Again  ;  it  has  been 
said,  that  insolvent  laws  act  on  imprisoned  debtors  only 
at  their  own  instance  ;  and  bankrupt  laws  only  at  the 
instance  of  creditors.  But,  however  true  this  may  have 
been  in  past  times,  as  the  actual  course  of  English 
legislation,  it  is  not  true,  and  never  was  true,  as  a  dis- 
tinction in  colonial  legislation.  In  England  it  was  an 
accident  in  tho  system,  and  not  a  material  ground  to 


390    CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

discriminate,  who  were  to  be  deemed,  in  a  legal  sense, 
insolvents,  or  bankrupts.  And  if  an  act  of  congress 
should  be  passed,  which  should  authorize  a  commis- 
sion of  bankruptcy  to  issue  at  the  instance  of  the  debtor, 
no  court  would  on  this  account  be  warranted  in  saying, 
that  the  act  was  unconstitutional,  and  the  commission  a 
nuUity.  It  is  beUeved,  that  no  laws  ever  were  passed 
in  America  by  the  colonies  or  states,  which  had  the 
technical  denomination  of  "  bankrupt  laws."  But  insol- 
vent laws,  quite  co-extensive  with  the  English  bankrupt 
system  in  their  operations  and  objects,  have  not  been 
unfrequent  in  colonial  and  state  legislation.  No  dis- 
tinction was  ever  practically,  or  even  theoretically,  at- 
tempted to  be  made  between  bankruptcies  and  insol- 
vencies. And  an  historical  review  of  the  colonial  and 
state  legislation  will  abundantly  show,  that  a  bankrupt 
law  may  contain  those  regulations,  which  are  generally 
found  in  insolvent  lav/s  ;  and  that  an  insolvent  law  may 
contain  those,  which  are  common  to  bankrupt  laws. 

^  544.  How  far  the  power  of  congress  to  pass  uni- 
form laws  on  the  subject  of  bankruptcies  supersedes 
the  authority  of  state  legislation  on  the  same  subject, 
has  been  a  matter  of  much  elaborate  forensic  discus- 
sion. It  has  been  strenuously  maintained  by  some 
learned  minds,  that  the  power  in  congress  is  exclusive  of 
that  of  the  states ;  and  whether  exerted  or  not,  it  super- 
sedes state  legislation.  On  the  other  hand,  it  has  been 
maintained,  that  the  power  in  congress  is  not  exclusive ; 
that  when  congress  has  acted  upon  the  subject,  to  the 
extent  of  the  national  legislation  the  power  of  the  states 
is  controlled  and  hmited ;  but  when  unexerted,  the 
states  are  at  liberty  to  exercise  the  power  in  its  full  ex- 
tent, unless  so  far  as  they  are  controlled  by  other  con- 
stitutional provisions.     And  this  latter  opinion  is  now 


CH.  XVI.]    POWERS  OF  CONGRESS -BANKRUPTCY.       891 

jGirmly  established  by  judicial  decisions.  As  this  doc- 
trine seems  now  to  have  obtained  a  general  acquies- 
cence, it  is  not  necessary  to  review  the  reasoning, 
on  which  the  different  opinions  are  founded ;  al- 
though, as  a  new  question,  it  is  probably  as  much  open 
to  controversy,  as  any  one,  which  has  ever  given  rise 
to  judicial  argumentation.  But  upon  all  such  subjects 
it  seems  desirable  to  adopt  the  sound  practical  maxim, 
Interest  reipublicm,  ut  finis  sit  litium, 

§  545.  It  is,  however,  to  be  understood,  that  although 
the  states  still  retain  the  power  to  pass  insolvent  and 
bankrupt  laws,  that  power  is  not  unlimited,  as  it  was 
before  the  constitution.  It  does  not,  as  will  be  pres- 
ently seen,  extend  to  the  passing  of  insolvent  or  bank- 
rupt acts,  which  shall  discharge  the  obligation  of  ante- 
cedent contracts.  It  can  discharge  such  contracts  only, 
as  are  made  subsequently  to  the  passing  of  such  acts, 
and  such,  as  are  made  within  the  state  between  citizens 
of  the  same  state.  It  does  not  extend  to  contracts 
made  with  a  citizen  of  another  state  within  the  state, 
nor  to  any  contracts  made  in  other  states. 


392  CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 


CHAPTER  XVII. 

POWER  TO  COIN  MONEY    AND  FIX  THE    STANDARD  OF 
WEIGHTS  AND  MEASURES. 

§546.  The  next  power  of  congress  is  "to  coin 
"  money,  regulate  the  value  thereof,  and  of  foreign  coin, 
"  and  fix  the  standard  of  weights  and  measures." 

^  547.  Under  the  confederation,  the  continental 
congress  had  delegated  to  them,  "  the  sole  and  exclu- 
sive right  and  power  of  regulating  the  alloy  and  value 
of  coin  struck  by  their  own  authority,  or  by  that  of  the 
states,"  and  of  "fixing  the  standard  of  weights  and  meas- 
ures throughout  the  United  States."  It  is  observable, 
that,  under  the  confederation,  there  was  no  power  given 
to  regulate  the  value  of  foreign  coin,  an  omission,  which 
in  a  great  measure  would  destroy  any  uniformity  in  the 
value  of  the  current  coin,  since  the  respective  states 
mightj  by  different  regulations,  create  a  different  value 
in  each.  The  constitution  has,  with  great  propriety, 
cured  this  defect ;  and,  indeed,  the  whole  clause,  as  it 
now  stands,  does  not  seem  to  have  attracted  any  dis- 
cussion in  the  convention.  It  has  been  justly  remark- 
ed, that  the  power  "  to  coin  money  "  would,  doubtless, 
include  that  of  regulating  its  value,  had  the  latter  power 
not  been  expressly  inserted.  But  the  constitution 
abounds  with  pleonasms  and  repetitions  of  this  nature. 

§  548.  The  grounds,  upon  which  the  general  power 
to  coin  money,  and  regulate  the  value  of  foreign  and 
domestic  coin,  is  granted  to  the  national  government, 
cannot  require  much  illustration  in  order  to  vindicate  it. 
The  object  of  the  power  is  to  produce  uniformity  of 


CH.  XVII.]    POWER  OF  CONGRESS COINAGE.  393 

value  throughout  the  Union,  and  thus  to  preclude  us 
from  the  embarrassments  of  a  perpetually  fluctuating 
and  variable  currency.  Money  is  the  universal  medium 
or  common  standard,  by  a  comparison  with  which  the 
value  of  all  merchandise  may  be  ascertained,  or,  it  is  a 
sign,  which  represents  the  respective  values  of  all  com- 
modities. It  is,  therefore,  indispensable  for  the  wants 
and  conveniences  of  commerce,  domestic  as  well  as 
foreign.  The  power  to  coin  money  is  one  of  the  ordi- 
nary prerogatives  of  sovereignty,  and  is  almost  univer- 
sally exercised  in  order  to  preserve  a  proper  circulation 
of  good  coin  of  a  known  value  in  the  home  market.  In 
order  to  secure  it  from  debasement  it  is  necessary,  that 
it  should  be  exclusively  under  the  control  and  regulation 
of  the  government ;  for  if  every  individual  were  permit- 
ted to  make  and  circulate,  what  coin  he  should  please, 
there  would  be  an  opening  to  the  grossest  frauds  and 
impositions  upon  the  public,  by  the  use  of  base  and 
false  coin.  And  the  same  remark  applies  with  equal 
force  to  foreign  coin,  if  allowed  to  circulate  freely  in  a 
country  without  any  control  by  the  government.  Every 
civilized  government,  therefore,  with  a  view  to  prevent 
such  abuses,  to  facihtate  exchanges,  and  thereby  to  en- 
courage all  sorts  of  industry  and  commerce,  as  well  as 
to  guard  itself  against  the  embarrassments  of  an  undue 
scarcity  of  currency,  injurious  to  its  own  interests  and 
credits,  has  found  it  necessary  to  coin  money,  and  aflix 
to  it  a  public  stamp  and  value,  and  to  regulate  the  in- 
troduction and  use  of  foreign  coins.  In  England,  this 
prerogative  belongs  to  the  crown ;  and,  in  former  ages, 
it  was  greatly  abused ;  for  base  coin  was  often  coined 
and  circulated  by  its  authority,  at  a  value  far  above  its 
intrinsic  worth  ;  and  thus  taxes  of  a  burthensome  na- 

Abr.  50 


394  CONSTITUTION  OF  THE  U.  STATES.    [bOOK*  III. 

ture  were  indirectly  laid  upon  the  people.  There  is 
great  propriety,  therefore,  in  confiding  it  to  the  legisla- 
ture, not  only  as  the  more  immediate  representatives  of 
the  public  interests,  but  as  the  more  safe  depositaries 
of  the  power. 

§  549.  The  other  power,  "to  fix  the  standard  of 
"weights  and  measures,"  is,  doubtless,  given  from 
like  motives  of  public  policy,  for  the  sake  of  uniformity, 
and  the  convenience  of  commerce.  Hitherto,  howev- 
er, it  has  remained  a  dormant  power,  from  the  many 
diflficulties  attendant  upon  the  subject,  although  it  has 
been  repeatedly  brought  to  the  attention  of  congress  in 
most  elaborate  reports.  Until  congress  shall  fix  a 
standard,  the  understanding  seems  to  be,  that  the 
states  possess  the  power  to  fix  their  own  weights  and 
measures ;  or,  at  least,  the  existing  standards  at  the 
adoption  of  the  constitution  remain  in  full  force.  Un- 
der the  confederation,  congress  possessed  the  like 
exclusive  power.  In  England  the  power  to  regulate 
weights  and  measures  is  said  by  Mr.  Justice  Black- 
stone  to  belong  to  the  royal  prerogative.  But  it  has 
been  remarked  by  a  learned  commentator  on  his  work, 
that  the  power  cannot,  with  propriety,  be  referred  to 
the  king's  prerogative  ;  for,  from  Magna  Charta  to  the 
present  time,  there  are  above  twenty  acts  of  parliament 
to  fix  and  establish  the  standard  and  uniformity  of 
weights  and  measures. 

§  550.  The  next  power  of  congress  is,  "  to  provide 
"  for  the  punishment  of  counterfeiting  the  securities  and 
"current  coin  of  the  United  States."  This  power 
would  naturally  flow,  as  an  incident,  from  the  antece- 
dent powers  to  borrow  money,  and  regulate  the  coinage; 
and,  indeed,  without  it  the  latter  would  be  deficient  in 


CH.  XVII.]  POWERS  OF  CONGRESS-WEIGHTS,  &,C.     396 

any  adequate  sanction.  This  power  would  seem  to  be 
exclusive  in  congress,  since  it  grows  out  of  the  consti- 
tution, as  an  appropriate  means  to  carry  into  effect 
other  delegated  powers,  not  antecedently  existing  in 
the  states. 


396  CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 


CHAPTER  XVIII. 

POWER  TO  ESTABLISH    POST-OFFICES  AND  POST- 
ROADS. 

^651.  The  next  power  of  congress  is,  "to  estab- 
"lish  post-offices  and  post-roads."  The  nature  and 
extent  of  this  power,  both  theoretically  and  practically, 
are  of  great  importance,  and  have  given  rise  to  much 
ardent  controversy.  It  deserves,  therefore,  a  delibe- 
rate examinadon.  It  was  passed  over  by  the  Federalist 
with  a  single  remark,  as  a  power  not  likely  to  be  dis- 
puted in  its  exercise,  or  to  be  deemed  dangerous  by  its 
scope.  The  "power,"  says  the  Federalist,  "of  estab- 
lishing post-roads  must,  in  every  view,  be  a  harmless 
power ;  and  may,  perhaps,  by  judicious  management, 
become  productive  of  great  public  conveniency.  No- 
thing, which  tends  to  facilitate  the  intercourse  between 
the  states,  can  be  deemed  unworthy  of  the  public  care." 
One  cannot  but  feel,  at  the  present  time,  an  inclination 
to  smile  at  the  guarded  caution  of  these  expressions, 
and  the  hesitating  avowal  of  the  importance  of  the 
power.  It  affords,  perhaps,  one  of  the  most  striking 
proofs,  how  much  the  growth  and  prosperity  of  the 
country  have  outstripped  the  most  sanguine  anticipa- 
tions of  our  most  enlightened  patriots. 

^  552.  The  post-office  establishment  has  already 
become  one  of  the  most  beneficent,  and  useful  estab- 
lishments under  the  national  government.  It  circulates 
intelligence  of  a  commercial,  political,  intellectual,  and 
private  nature,  with  incredible  speed  and  regularity.  It 
thus  administers,  in  a  very  high  degree,  to  the  comfort. 


CH.  XVIII.]  POWERS  OF  CONGRESS-POST-OFFICE.     397 

the  interests,  and  the  necessities  of  persons,  in  every 
rank  and  station  of  life.  It  brings  the  most  distant 
places  and  persons,  as  it  were,  in  contact  with  each 
other ;  and  thus  softens  the  anxieties,  increases  the  en- 
joyments, and  cheers  the  solitude  of  millions  of  hearts. 
It  imparts  a  new  influence  and  impulse  to  private 
intercourse ;  and,  by  a  wider  diffusion  of  knowledge, 
enables  political  rights  and  duties  to  be  performed  with 
more  uniformity  and  sound  judgment.  It  is  not  less 
effective,  as  an  instrument  of  the  government  in  its  own 
operations.  In  peace,  it  enables  it  without  ostentation 
or  expense  to  send  its  orders,  and  direct  its  measures 
for  the  public  good,  and  transfer  its  funds,  and  apply  its 
powers,  with  a  facility  and  promptitude,  which,  compared 
with  the  tardy  operations,  and  imbecile  expedients  of 
former  times,  seem  like  the  wonders  of  magic.  In 
war  it  is,  if  possible,  still  more  important  and  useful, 
communicating  intelligence  vital  to  the  movements  of 
armies  and  navies,  and  the  operations  and  duties 
of  warfare,  with  a  rapidity,  which,  if  it  does  not  always 
ensure  victory,  at  least,  in  many  instances,  guards 
against  defeat  and  ruin.  Thus,  its  influences  have  be- 
come, in  a  public,  as  well  as  private  view,  of  incalculable 
value  to  the  permanent  interests  of  the  Union.  It 
is  obvious  at  a  moment's  glance  at  the  subject,  that  the 
establishment  in  the  hands  of  the  states  would  have 
been  wholly  inadequate  to  these  objects  ;  and  the  im- 
practicability of  any  uniformity  of  system  would  have 
introduced  infinite  delays  and  inconveniences ;  and 
burthened  the  mails  with  an  endless  variety  of  vexa- 
tious taxations,  and  regulations.  No  one,  accustomed 
to  the  retardations  of  the  post  in  passing  through  inde- 
pendent states  on  the  continent  of  Europe,  can  fail  to 
appreciate  the  benefits  of  a  power,  which  pervades  the 


398  CONSTITUTION  OF  THE  U.  STATES.       [bOOK    III. 

Union.  The  national  government  is  that  alone,  which 
can  safely  or  effectually  execute  it,  with  equal  prompti- 
tude and  cheapness,  certainty  and  uniformity.  Already 
the  post-office  establishment  realizes  a  revenue  exceed- 
ing two  millions  of  dollars,  from  which  it  defrays  all  its 
own  expenses,  and  transmits  mails  in  various  directions 
over  more  than  one  hundred  and  twenty  thousand  miles. 
It  transmits  intelligence  in  one  day  to  distant  places, 
which,  when  the  constitution  was  first  put  into  opera- 
tion, was  scarcely  transmitted  through  the  same  distance 
in  the  course  of  a  week.  The  rapidity  of  its  movements 
has  been  in  a  general  view  doubled  within  the  last 
twenty  years.  There  are  now  more  than  eight  thou- 
sand five  hundred  post-offices  in  the  United  States ; 
and  at  every  session  of  the  legislature  new  routes  are 
constantly  provided  for,  and  new  post-offices  establish- 
ed. It  may,  therefore,  well  be  deemed  a  most  benefi- 
cent power,  whose  operations  can  scarcely  be  applied, 
except  for  good;  accomplishing  in  an  eminent  degree 
some  of  the  high  purposes  set  forth  in  the  preamble 
of  the  constitution ;  forming  a  more  perfect  union ;  pro- 
viding for  the  common  defence ;  and  promoting  the  gen- 
eral welfare. 

§  553.  Upon  the  construction  of  this  clause  of  the 
constitution,  two  opposite  opinions  have  been  express- 
ed. One  maintains,  that  the  power  to  establish  post- 
offices  and  post-roads  can  intend  no  more,  than  the 
power  to  direct,  where  post-offices  shall  be  kept,  and 
on  what  roads  the  mails  shall  be  carried.  Or,  as  it 
has  been  on  other  occasions  expressed,  the  power  to 
establish  post-roads  is  a  power  to  designate,  or  point  out, 
what  roads  shall  be  mail-roads,  and  the  right  of  passage 
or  way  along  them,  when  so  designated.  The  other 
maintains,  that  although  these  modes  of  exercising  the 


CH.  XVIII.]  POWERS  OF  COJVGRESS-POST-OFFICE.    399 

power  are  perfectly  constitutional ;  yet  they  are  not  the 
whole  of  the  power,  and  do  not  exhaust  it.  On  the 
contrary,  the  power  comprehends  the  right  to  make,  or 
construct  any  roads,  which  congress  may  deem  proper 
for  the  conveyance  of  the  mail,  and  to  keep  them  in 
due  repair  for  such  purpose. 

§  554.  The  whole  practical  course  of  the  govern- 
ment upon  this  subject,  from  its  first  organization  down 
to  the  present  time,  under  every  administration,  has 
repudiated  the  strict  and  narrow  construction  of  the 
words  above  mentioned.  The  power  to  establish  post- 
offices  and  post-roads  has  never  been  understood  to 
be  limited  to  the  power  to  point  out  and  designate 
post-offices  and  post-roads.  Resort  has  been  con- 
stantly had  to  the  more  expanded  sense  of  the  word 
"  establish;"  and  no  other  sense  can  include  the  objects, 
which  the  post-office  laws  have  constantly  included. 
Nay,  it  is  not  only  not  true,  that  these  laws  have  stop- 
ped short  of  an  exposition  of  the  words  sufficiently 
broad  to  justify  the  making  of  roads ;  but  they  have  in- 
cluded exercises  of  power  far  more  remote  from  the 
immediate  objects.  If  the  practice  of  the  government 
is,  therefore,  of  any  weight  in  giving  a  constitutional 
interpretation,  it  is  in  favour  of  the  liberal  interpretation 
of  the  clause. 

§  555.  But  passing  by  considerations  of  this  nature, 
why  does  not  the  power  to  establish  post-offices  and 
post-roads  include  the  power  to  make  and  construct 
them,  when  wanted,  as  well  as  the  power  to  establish  a 
navy-hospital,  or  a  custom-house,  a  power  to  make  and 
construct  them  1  The  latter  is  not  doubted  by  any 
persons ;  why  then  is'  the  former  ?  In  each  case,  the 
sense  of  the  ruling  term  "  establish"  would  seem  to  be 
the  same;  in  each,  the  power  may  be  carried  into  effect 


400  CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 

by  means  short  of  constructing,  or  purchasing  the  things 
authorized.  A  temporary  use  of  a  suitable  site  or 
building  may  possibly  be  obtained  with,  or  without 
hire.  Besides ;  why  may  not  congress  purchase,  or 
erect  a  post-office  building,  and  buy  the  necessary 
land,  if  it  be  in  their  judgment  advisable  ?  Can  there 
be  a  just  doubt,  that  a  power  to  establish  post-offices 
includes  this  power,  just  as  much,  as  a  power  to  estab- 
hsh  custom-houses  would  to  build  the  latter  ?  Would 
it  not  be  a  strange  construction  to  say,  that  the  abstract 
office  might  be  created,  but  not  the  officina,  or  place, 
where  it  should  be  exercised  ?  There  are  many  places 
peculiarly  fit  for  local  post-offices,  where  no  suitable 
building  could  be  found.  And,  if  a  power  to  construct 
post-office  buildings  exists,  where  is  the  restraint  upon 
constructing  roads? 

^  556.  But  whatever  be  the  extent  of  the  power^ 
narrow  or  large,  there  will  still  remain  another  inquiry, 
whether  it  is  an  exclusive  power,  or  concurrent  in  the 
states.  This  is  not,  perhaps,  a  very  important  inquiry, 
because  it  is  admitted  on  all  sides,  that  it  can  be  exer- 
cised only  in  subordination  to  the  power  of  congress,  if 
it  be  concurrent  in  the  states.  A  learned  commentator 
deems  it  concurrent,  inasmuch  as  there  seems  nothing 
in  the  constitution,  or  in  the  nature  of  the  thing  itself, 
which  may  not  be  exercised  by  both  governments  at 
the  same  time,  without  prejudice  or  interference ;  but 
subordinate,  because,  whenever  any  power  is  expressly 
granted  to  congress,  it  is  to  be  taken  for  granted,  that 
it  is  not  to  be  contravened  by  the  authority  of  any  par- 
ticular state.  A  state  might,  therefore,  establish  a  post- 
road,  or  post-office,  on  any  route,  where  congress  had 
not  estabhshed  any.  On  the  other  hand,  another  learn- 
ed commentator  is  of  opinion,  that  the  power  is  exclu- 


CH.  XVIII.]    POWERS  OF  CONGRESS-POST-OFFICE.    401 

sive  in  congress,  so  far  as  relates  to  the  conveyance  of 
letters.  Hitherto  the  question  has  been  purely  specu- 
lative ;  and  it  cannot  now  be  important  to  discuss  it. 
It  is  highly  improbable,  that  any  state  will  attempt  any 
exercise  of  the  power,  considering  the  difficulty  of 
carrying  it  into  effect,  without  the  co-operation  of  con- 
gress. 


Ahr, 


51 


402   CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 


CHAPTER  XIX. 

POWER  TO  PROMOTE   SCIENCE  AND  USEFUL  ARTS. 

^  557.  The  next  power  of  congress  is,  "  to  promote 
"  the  progress  of  science  and  the  useful  arts,  by  secur- 
"ing,  for  limited  times,  to  authors  and  inventors  the 
"  exclusive  right  to  their  respective  writings  and  dis- 
"  coveries." 

^  558.  This  power  did  not  exist  under  the  confed- 
eration ;  and  its  utility  does  not  seem  to  have  been 
questioned.  The  copyright  of  authors  in  their  works 
had,  before  the  revolution,  been  decided  in  Great  Britain 
to  be  a  common  law  right ;  and  it  was  regulated  and 
limited  under  statutes  passed  by  parliament  upon  that 
subject.  The  right  to  useful  inventions  seems,  with 
equal  reason,  to  belong  to  the  inventors  ;  and,  accord- 
ingly, it  was  saved  out  of  the  statute  of  monopohes  in 
the  reign  of  King  James  the  First,  and  has  ever  since 
been  allowed  for  a  hmited  period,  not  exceeding  four- 
teen years.  It  is  doubdess  to  this  knowledge  of  the 
common  law  and  statuteable  rights  of  authors  and  in- 
ventors, that  we  are  to  attribute  this  constitutional 
provision.  It  is  beneficial  to  all  parties,  that  the 
national  government  should  possess  this  power ;  to 
authors  and  inventors,  because,  otherwise,  they  would 
be  subjected  to  the  varying  laws  and  systems  of 
the  different  states  on  this  subject,  which  would  im- 
pair, and  might  even  destroy  the  value  of  their  rights ; 
to  the  public,  as  it  will  promote  the  progress  of 
science  and  the  useful  arts,  and  admit  the  people  at 
large,  after  a  short  interval,  to  the  full  possession  and 


CH.  XIX.]    POWERS  OF  CONGRESS INVENTIONS.    403 

enjoyment  of  all  writings  and  inventions  without  re- 
straint. In  short,  the  only  boon  that  could  be  offered 
to  inventors  to  disclose  the  secrets  of  their  discoveries, 
would  be  the  exclusive  right  and  profit  of  them,  as  a 
monopoly,  for  a  limited  period.  And  authors  would 
have  little  inducement  to  prepare  elaborate  works  for 
the  public,  if  the  publication  of  them  would  be  at  a  large 
expense,  and,  as  soon  as  they  were  pubHshed,  there 
would  be  an  unlimited  right  of  depredation  and  piracy 
of  their  copyright.  The  states  could  not  separately 
make  effectual  provision  for  either  of  the  cases  ;  and 
most  of  them,  at  the  time  of  the  adoption  of  the  consti- 
tution, had  anticipated  the  propriety  of  such  a  grant  of 
power,  by  passing  laws  on  the  subject,  at  the  instance 
of  the  continental  congress. 

^  559.  The  power,  in  its  terms,  is  confined  to 
authors  and  inventors  ;  and  cannot  be  extended  to  the 
introducers  of  any  new  works  or  inventions.  This  has 
been  thought  by  some  persons  of  high  distinction  to  be 
a  defect  in  the  constitution.  But  perhaps  the  policy  of 
further  extending  the  right  is  questionable  ;  and,  at  all 
events,  the  restriction  has  not  hitherto  operated  as  any 
discouragement  of  science  or  the  arts.  It  has  been 
doubted,  whether  congress  has  authority  to  decide  the 
fact,  that  a  person  is  an  author  or  inventor  in  the  sense 
of  the  constitution,  so  as  to  preclude  that  question 
from  judicial  inquiry.  But,  at  all  events,  such  a  con- 
struction ought  never  to  be  put  upon  the  general  terms 
of  any  act  in  favour  of  a  particular  inventor,  unless  it 
be  inevitable. 

^  560.  The  next  power  of  congress  is,  "  to  consti- 
"  tute  tribunals  inferior  to  the  Supreme  Court."  This 
clause  properly  belongs  to  the  third  article  of  the  con- 


404  CONSTITUTION  OP  THE  U.  STATES.    [BOOK  III< 


stitution ;  and  will  come  in  review,  when  we  survey 
the  structure  and  powers  of  the  judicial  depart- 
ment. It  will,  therefore,  be,  for  the  present,  passed 
over. 


CH.  XX,]        POWERS  OF  CONGRESS  —  PIRACY.  405 

'  CHAPTER  XX. 

POWER  TO  PUNISH  PIRACIES  AND  FELONIES. 

.,  ^661.  The  next  power  of  congress  is,  "to  define 
"and  punish  piracies  and  felonies  committed  on  the 
"  high  seas,  and  offences  against  the  law  of  nations." 

^  562.  If  the  clause  of  the  constitution  had  been 
confined  to  piracies,  there  would  not  have  been  any 
necessity  of  conferring  the  power  to  define  the  crime, 
since  the  power  to  punish  would  necessarily  be  held  to 
include  the  power  of  ascertaining  and  fixing  the  defini- 
tion of  the  crime.  Indeed,  there  would  not  seem  to  be 
the  slightest  reason  to  define  the  crime  at  all ;  for  piracy 
is  perfectly  well  known,  and  understood  in  the  law  of 
nations,  though  it  is  often  found  defined  in  mere  muni- 
cipal codes.  By  the  law  of  nations,  robbery,  or  forci- 
ble depredation  upon  the  sea,  aninio  fiirandi,  is  piracy. 
The  common  law,  too,  recognises,  and  punishes  piracy 
as  an  offence,  not  against  its  own  municipal  code,  but 
as  an  offence  against  the  universal  law  of  nations ;  a 
pirate  being  deemed  an  enemy  of  the  human  race. 
The  common  law,  therefore,  deems  piracy  to  be  rob- 
bery on  the  sea ;  that  is,  the  same  crime,  which  it  de- 
nominates robbery,  when  committed  on  land.  And  if 
congress  had  simply  declared,  that  piracy  should  be 
punished  with  death,  the  crime  would  have  been  suffi- 
ciently defined.  Congress  may  as  well  define  by  using 
a  term  of  a  known  and  determinate  meaning,  as  by  an 
express  enumeration  of  all  the  particulars  included  in 
that  term ;  for  that  is  certain,  which,  by  reference,  is 
made  certain.    If  congress  should  declare  murder  a 


406  CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 

felony,  no  body  would  doubt,  what  was  intended  by 
murder.  And,  indeed,  if  congress  sKould  proceed  to 
declare,  that  homicide,  "with  malice  aforethought," 
should  be  deemed  murder,  and  a  felony;  there  would 
still  be  the  same  necessity  of  ascertaining,  from  the 
common  law,  what  constitutes  malice  aforethought. 
So,  that  there  would  be  no  end  to  dilficulties  or  defini- 
tions ;  for  each  successive  definition  might  involve  some 
terms,  which  would  still  require  some  new  explana- 
tion. The  true  intent  of  the  constitution  in  this 
clause,  is  not  merely  to  define  piracy,  as  .known  to  the 
law  of  nations,  but  to  enumerate  what  crimes  in  the 
national  code  shall  be  deemed  piracies.  And  so  |the 
power  has  been  practically  expounded  by  congress. 

§  563.  But  the  power  is  not  merely  to  define  and 
punish  piracies,  but  felonies,  and  offences  against  the 
law  of  nations ;  and  on  this  account,  the  power  to 
define,  as  well  as  to  punish,  is  peculiarly  appropriate. 
It  has  been  remarked,  that  felony  is  a  term  of  loose  sig- 
nification, even  in  the  common  law;  and  of  various 
import  in  the  statute  law  of  England.  Mr.  Justice 
Blackstone  says,  that  felony,  in  the  general  acceptation 
of  the  English  law,  comprises  every  species  of  crime, 
which  occasioned  at  common  law  the  forfeiture  of 
lands  and  goods.  This  most  frequently  happens  in 
those  crimes,  for  which  a  capital  punishment  either  is, 
or  was  liable  to  be  inflicted.  All  offences  now  capital 
by  the  English  law  are  felonies ;  but  there  are  still  some 
offences,  not  capital,  which  are  yet  felonies,  (such  as 
suicide,  petty  larceny,  and  homicide  by  chance  med- 
ley ;)  that  is,  they  subject  the  committers  of  them  to 
some  forfeiture,  either  of  lands  or  goods.  But  the 
idea  of  capital  punishment  has  now  become  so  associat- 
ed, in  the  English  law,  with  the  idea  of  felony,  that  if 


CH.  XX.]       POWERS  OF  CONGRESS PIRACY. 


407 


an  act  of  parliament  makes  a  new  offence  felony,  the 
law  implies,  that  it  shall  be  punished  with  death,  as  well 
as  with  forfeiture. 

^  564.  But  whatever  may  be  the  true  import  of  the 
word  felony  at  the  common  law,  in  regard  to  muni- 
cipal offences,  its  meaning,  in  regard  to  offences  on  the 
high   seas,   is    necessarily    somewhat    indeterminate ; 
since  the  term  is  not  used  in  the  criminal  jurisprudence 
of  the  Admiralty  in  the  technical  sense  of  the  common 
law.     Lord  Coke  long  ago  stated,  that  a  pardon  of 
felonies  would  not  pardon  piracy ;  for  "  piracy  or  rob- 
bery on  the  high  seas  was  no  felony,  whereof  the  com- 
mon law  took  any  knowledge,  &c. ;  but  was  only  pun- 
ishable by  the  civil  law,  &c. ;  the  attainder  by  which 
law  wrought  no   forfeiture  of  lands  or  corruption  of 
blood."     And  he  added,  that  the  statute  of  28  Henry 
8,  ch.  15,  which  created  the  High  Commission  Court 
for  the  trial  of  "  all  treasons,  felonies,  robberies,  mur- 
ders, and  confederacies,  committed  in  or  upon  the  high 
sea,  &c.,"  did  not  alter  the  offence,  or  make  the  of- 
fence felony,  but  left  the  offence  as  it  was  before  the 
act,  viz.  felony  only  by  the  civil  law. 

^  565.  Offences  against  the  law  of  nations  are  quite 
as  important,  and  cannot  with  any  accuracy  be  said  to  be 
completely  ascertained,  and  defined  in  any  public  code, 
recognised  by  the  common  consent  of  nations.  In 
respect,  therefore,  as  well  to  felonies  on  the  high  seas, 
as  to  offences  against  the  law  of  nations,  there  is  a  pe- 
culiar fitness  in  giving  to  congress  the  power  to  define, 
as  well  as  to  punish.  And  there  is  not  the  slightest 
reason  to  doubt,  that  this  consideration  had  very  great 
weight  with  the  convention,  in  producing  the  phraseo- 
logy of  the  clause.  On  both  subjects  it  would  have 
been  inconvenient,  if  not  impracticable,  to  have  referred 


408    CONSTITUTION  OF  THE  U.  STATES.   [BOOK  III, 

to  the  codes  of  the  states,  as  well  from  their  imperfec- 
tion, as  their  different  enumeration  of  the  offences. 
Certainty,  as  well  as  uniformity,  required,  that  the 
power  to  define  and  punish  should  reach  over  the 
whole  of  these  classes  of  offences. 

^566.  What  is  the  meaning  of  "  high  seas,"  within 
the  intent  of  this  clause,  does  not  seem  to  admit  of  any 
serious  doubt.  The  phrase  embr,aces  not  only  the 
waters  of  the  ocean,  which  are  out  of  sight  of  land,  but 
the  waters  on  the  sea  coast  below  low  water  mark, 
whether  within  the  territorial  boundaries  of  a  foreign 
nation,  or  of  a  domestic  state.  Mr.  Justice  Blackstone 
has  remarked,  that  the  main  sea  or  high  sea  begins  at 
the  low  water  mark.  But  between  the  high  water 
mark  and  low  water  mark,  where  the  tide  ebbs  and 
flows,  the  common  law  and  the  admiralty  have 
divisum  imperium^  an  alternate  jurisdiction,  one  upon 
the  water,  when  it  is  full  sea ;  the  other  upon  the  land, 
when  it  is  an  ebb.  He  doubtless  here  refers  to  the 
waters  of  the  ocean  on  the  sea-coast,  and  not  in  creeks 
and  inlets.  Lord  Hale  says,  that  the  sea  is  either  that, 
which  lies  within  the  body  of  the  county,  or  without. 
That,  which  lies  without  the  body  of  a  county,  is  called 
the  main  sea,  or  ocean.  So  far,  then,  as  regards  the 
states  of  the  Union,  "  high  seas"  may  be  taken  to  mean 
that  part  of  the  ocean,  which  washes  the  sea-coast,  and 
is  without  the  body  of  any  county,  according  to  the 
common  law ;  and,  so  far  as  regards  foreign  nations,  any 
waters  on  their  sea-coast,  below  low  water  mark. 


CH.  XXI.]  POWERS  OF  CONGRESS WAR.  409 


CHAPTER  XXI. 

THE  POWER  TO  DECLARE  WAR  AND  MAKE 
CAPTURES. 

§  567.  The  next  power  of  congress  is  to  "  declare 
"  war,  grant  letters  of  marque  and  reprisal,  and  make 
"  rules  concerning  captures  on  land  and  water." 

§  568.  A  similar  exclusive  power  was  given  to 
congress  by  the  confederation.  That  such  a  power 
ought  to  exist  in  the  national  government,  no  one  will 
deny,  who  believes,  that  it  ought  to  have  any  powers 
whatsoever,  either  for  offence  or  defence,  for  the  com- 
mon good,  or  for  the  common  protection.  It  is,  there- 
fore, wholly  superfluous  to  reason  out  the  propriety  of 
granting  the  power.  It  is  self-evident,  unless  the  na- 
tional government  is  to  be  a  mere  mockery  and 
shadow.  The  power  could  not  be  left  without  ex- 
treme mischief,  if  not  absolute  ruin,  to  the  separate  au- 
thority of  the  several  states ;  for  then  it  would  be  at 
the  option  of  any  one  to  involve  the  whole  in  the  ca- 
lamities and  burthens  of  warfare.  In  the  general  gov- 
ernment it  is  safe,  because  war  can  be  declared  only 
by  the  majority  of  the  states,  in  congress. 

^  569.  The  only  practical  question  upon  this  subject 
would  seem  to  be,  to  what  department  of  the  national 
government  it  would  be  most  wise  and  safe  to  confide 
this  high  prerogative,  emphatically  called  the  last  resort 
of  sovereigns,  ultima  ratio  regum.  In  Great  Britain 
it  is  the  exclusive  prerogative  of  the  crown ;  and  in 
other  countries,  it  is  usually,  if  not  universally,  confided 
to  the  executive  department.   It  might  by  the  constitu- 

Abr.  52 


410  CONSTITUTION  OF  THE  U.   STATES.     [bOOK  III. 

tion  have  been  confided  to  the  executive,  or  to  the 
senate,  or  to  both  conjointly. 

§  570.  In  the  plan  offered  by  an  eminent  statesman 
in  the  convention,  it  was  proposed,  that  the  senate 
should  have  the  sole  power  of  declaring  war.  The 
reasons,  which  may  be  urged  in  favour  of  such  an 
arrangement,  are,  that  the  senate  would  be  composed 
of  representatives  of  the  states,  of  great  weight,  saga- 
city, and  experience,  and  that  being  a  small  and  select 
body,  promptitude  of  action,  as  well  as  wisdom,  and 
firmness,  would,  as  they  ought,  accompany  the  pos- 
session of  the  power.  Large  bodies  necessarily  move 
slowly  ;  and  where  the  co-operation  of  different  bodies 
is  required,  the  retardation  of  any  measure  must  be 
proportionally  increased.  In  the  ordinary  course  of 
legislation  this  may  be  no  inconvenience.  But  in  the 
exercise  of  such  a  prerogative,  as  declaring  war,  des- 
patch, secrecy,  and  vigour  are  often  indispensable,  and 
always  useful  towards  success.  On  the  other  hand  it 
may  be  urged  in  reply,  that  the  power  of  declaring 
war  is  not  only  the  highest  sovereign  prerogative,  but 
that  it  is  in  its  own  nature  and  effects  so  critical  and  ca- 
lamitous, that  it  requires  the  utmost  deliberation,  and 
the  successive  review  of  all  the  councils  of  the  nation. 
War,  in  its  best  estate,  never  fails  to  impose  upon  the 
people  the  most  burthensome  taxes,  and  personal  suf- 
ferings. It  is  always  injurious  to,  and  sometimes  sub- 
versive of  the  great  commercial,  manufacturing,  and 
agricultural  interests.  Nay,  it  always  involves  the 
prosperity,  and  not  unfrequently  the  existence,  of  a 
nation.  It  is  sometimes  fatal  to  public  liberty  itself,  by 
introducing  a  spirit  of  military  glory,  w^hich  is  ready 
to  follow,  wherever  a  successful  commander  will 
lead ;  and  in  a  republic,  whose  institutions  are  essen- 


CH.  XXI.]  POWERS  OF  CONGRESS WAR  411 

tially  founded  on  the  basis  of  peace,  there  is  infinite 
danger,  that  war  will  find  it  both  imbecile  in  defence, 
and  eager  for  contest.  Indeed,  the  history  of  republics 
has  but  too  fatally  proved,  that  they  are  too  ambitious 
of  military  fame  and  conquest,  and  too  easily  devoted 
to  the  views  of  demagogues,  who  flatter  their  pride, 
and  betray  their  interests.  It  should  therefore  be 
difficult  in  a  republic  to  declare  war ;  but  not  to  make 
peace.  The  representatives  of  the  people  are  to  lay 
the  taxes  to  support  a  war,  and  therefore  have  a  right  to 
be  consulted,  as  to  its  propriety  and  necessity.  The 
executive  is  to  carry  it  on,  and  therefore  should  be 
consulted,  as  to  its  time,  and  the  ways  and  means  of 
making  it  effective.  The  co-operation  of  all  the  branches 
of  the  legislative  power  ought,  upon  principle,  to  be  re- 
quired in  this  the  highest  act  of  legislation,  as  it  is  in  all 
others.  Indeed,  there  might  be  a  propriety  even  in 
enforcing  still  greater  restrictions,  as  by  requiring  a  con- 
currence of  two  thirds  of  both  houses. 

§  571.  This  reasoning  appears  to  have  had  great 
weight  with  the  convention,  and  to  have  decided  its 
choice.  Its  judgment  has  hitherto  obtained  the  unqual- 
ified approbation  of  the  country. 

§  572.  The  power  to  declare  war  would  of  itself 
carry  the  incidental  power  to  grant  letters  of  marque 
and  reprisal,  and  make  rules  concerning  captures.  It  is 
most  probable,  that  an  extreme  solicitude  to  follow  out 
the  powers,  enumerated  in  the  confederation,  occasioned 
the  introduction  of  these  clauses  into  the  constitution.  In 
the  former  instrument,  where  all  powers,  not  expressly 
delegated,  were  prohibited,  this  enumeration  was  pecu- 
liarly appropriate.  But  in  the  latter,  where  incidental 
powers  were  expressly  contemplated,  and  provided  for, 
the  same  necessity  did  not  exist.     As  has  been  already 


412  CONSTITUTION  OF    THE  U.  STATES.    [bOOK  III. 

remarked  in  another  place,  and  will  abundantly  appear 
from  the  remaining  clauses  auxiliary  to  the  power  to 
declare  war,  the  constitution  abounds  with  pleonasms 
and  repetitions,  sometimes  introduced  from  caution, 
sometimes  from  inattention,  and  sometimes  from  the 
imperfections  of  language. 

§  573.  But  the  express  power  "  to  grant  letters  of 
marque  and  reprisal"  may  not  have  been  thought  wholly 
unnecessary,  because  it  is  often  a  measure  of  peace,  to 
prevent  the  necessity  of  a  resort  to  war.  Thus,  indi- 
viduals of  a  nation  sometimes  suffer  from  the  depreda- 
tions of  foreign  potentates;  and  yet  it  may  not  be 
deemed  either  expedient  or  necessary  to  redress  such 
grievances  by  a  general  declaration  of  war.  Under 
such  circumstances  the  law  of  nations  authorizes  the 
sovereign  of  the  injured  individual  to  grant  him  this 
mode  of  redress,  whenever  justice  is  denied  to  him  by 
the  state,  to  which  the  party,  who  has  done  the  injury, 
belongs.  In  this  case  the  letters  of  marque  and  reprisal 
(words  used  as  synonymous,  the  latter  (reprisal)  signi- 
fying, a  taking  in  return,  the  former  (letters  of  marque) 
the  Hcense  to  pass  the  frontiers  in  order  to  such  taking,) 
contain  an  authority  to  seize  the  bodies  or  goods  of 
the  subjects  of  the  offending  state,  wherever  they  may 
be  found,  until  satisfaction  is  made  for  the  injury. 
This  power  of  reprisal  seems  indeed  to  be  a  dictate 
almost  of  nature  itself,  and  is  nearly  related  to,  and 
plainly  derived  from  that  of  making  war.  It  is  but  an 
incomplete  state  of  hostilities;  and  often  ultimately  leads 
to  a  formal  denunciation  of  war,  if  the  injury  is  unre- 
dressed, or  extensive  in  its  operations. 

^  574.  The  next  power  of  congress  is  "  to  raise  and 
"  support  armies;  but  no  appropriation  of  money  to  that 
"  use  shall  be  for  a  longer  term  than  two  years." 


CH.  XXI.]  POWERS  OF  CONGRESS WAR.  413 

^  475.  The  power  to  raise  armies  is  an  indis- 
pensable incident  to  the  power  to  declare  war ;  and 
the  latter  would  Uterally  be  irutum  fulmen  without 
the  former,  a  means  of  mischief  without  a  power  of 
defence.  Under  the  confederation  congress  possessed 
no  power  whatsoever  to  raise  armies ;  but  only  "  to 
agree  upon  the  number  of  land  forces,  and  to  make 
requisitions  from  each  state  for  its  quota,  in  proportion 
to  the  number  of  white  inhabitants  in  such  state ; "  which 
requisitions  were  to  be  binding;  and  thereupon  the  legis- 
lature of  each  state  were  to  appoint  the  regimental  offi- 
cers, raise  the  men,  and  clothe,  arm,  and  equip  them  in 
a  soldier-like  manner,  at  the  expense  of  the  United 
States.  The  experience  of  the  whole  country,  during 
the  revolutionary  war,  established,  to  the  satisfaction  of 
every  statesman,  the  utter  inadequacy  and  impropriety 
of  this  system  of  requisition.  It  was  equally  at  war 
with  economy,  efficiency,  and  safety.  It  gave  birth  to 
a  competition  between  the  states,  which  created  a  kind 
of  auction  of  men.  In  order  to  furnish  the  quotas 
required  of  them,  they  outbid  each  other,  till  bounties 
grew  to  an  enormous  and  insupportable  size.  On  this 
account  many  persons  procrastinated  their  enlistment,  or 
enUsted  only  for  short  periods.  Hence,  there  were  but 
slow  and  scanty  levies  of  men  in  the  most  critical  emer- 
gencies of  our  affairs ;  short  enlistments  at  an  unparallel- 
ed expense ;  and  continual  fluctuations  in  the  troops, 
ruinous  to  their  discipline,  and  subjecting  the  public 
safety  frequently  to  the  perilous  crisis  of  a  disbanded 
army.  Hence  also  arose  those  oppressive  expedients 
for  raising  men,  which  were  occasionally  practised,  and 
which  nothing,  but  the  enthusiasm  of  liberty,  could  have 
induced  the  people  to  endure.  The  burthen  was  also 
very  unequally  distributed.     The  states  near  the  seat  of 


414     CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

war,  influenced  by  motives  of  self-preservation,  made 
efforts  to  furnish  their  quotas,  which  even  exceeded 
their  abilities ;  while  those  at  a  distance  were  exceed- 
ingly remiss  in  their  exertions.  In  short,  the  army  was 
frequently  composed  of  three  bodies  of  men;  first,  raw 
recruits ;  secondly,  persons,  who  were  just  about  com- 
pleting their  term  of  service ;  and  thirdly,  of  persons, 
who  had  served  out  half  their  term,  and  were  quietly 
waiting  for  its  determination.  Under  such  circumstan- 
ces, the  wonder  is  not,  that  its  military  operations  were 
tardy,  irregular,  and  often  unsuccessful ;  but,  that  it  was 
ever  able  to  make  head-way  at  all  against  an  enemy, 
possessing  a  fine  establishment,  well  appointed,  well 
armed,  well  clothed,  and  well  paid.  The  appointment, 
too,  by  the  states,  of  all  regimental  oflicers,  had  a  ten- 
dency to  destroy  all  harmony  and  subordination,  so  ne- 
cessary to  the  success  of  military  life. 

^  476.  There  is  great  wisdom  and  propriety  in  reliev- 
ing the  government  from  the  ponderous  and  unwieldly 
machinery  of  the  requisitions  and  appointments  under 
the  confederation.  The  present  system  of  the  Union  is 
general  and  direct,  and  capable  of  a  uniform  organiza- 
tion and  action.  It  is  essential  to  the  common  de- 
fence, that  the  national  government  should  possess  the 
power  to  raise  armies ;  build  and  equip  fleets ;  pre- 
scribe rules  for  the  government  of  both ;  direct  their 
operations ;  and  provide  for  their  support.  The  power, 
however,  was  assailed  in  the  state  conventions,  and  be- 
fore the  people,  with  incredible  zeal  and  pertinacity,  as 
dangerous  to  hberty,  and  subversive  of  the  state  gov- 
ernments. Objections  were  made  against  the  general 
and  indefinite  power  to  raise  armies,  not  limiting  the 
number  of  troops ;  and  to  the  maintenance  of  them  in 
peace,  as  well  as  in  war. 


CH.  XXI.]         POWERS  OF  CONGRESS WAR.  415 

§  577.  To  these  suggestions  it  was  replied  with 
equal  force  and  truth,  that  to  be  of  any  value,  the  power 
must  be  unlimited.  It  is  impossible  to  foresee,  or 
define  the  extent  and  variety  of  national  exigencies, 
and  the  correspondent  extent  and  variety  of  the  national 
means  necessary  to  satisfy  them.  The  power  must  be 
co-extensive  with  all  possible  combinations  of  circum- 
stances, and  under  the  direction  of  the  councils  entrust- 
ed with  the  common  defence.  To  deny  this  would  be 
to  deny  the  means,  and  yet  require  the  end.  These 
must  therefore,  be  unlimited  in  every  matter  essential 
to  its  efl[icacy,  that  is,  in  the  formation,  direction,  and 
support  of  the  national  forces.  This  was  not  doubted 
under  the  confederation ;  though  the  mode  adopted  to 
carry  it  into  effect  was  utterly  inadequate  and  illusory. 

^  578.  It  is  important  also  to  consider,  that  the  surest 
means  of  avoiding  war  is  to  be  prepared  for  it  in  peace. 
If  a  prohibition  should  be  imposed  upon  the  United 
States  against  raising  armies  in  time  of  peace,  it  would 
present  the  extraordinary  spectacle  to  the  world  of  a 
nation  incapacitated  by  a  constitution  of  its  own  choice 
from  preparing  for  defence  before  an  actual  invasion. 
As  formal  denunciations  of  war  are  in  modern  times  often 
neglected,  and  are  never  necessary,  the  presence  of  an 
enemy  within  our  territories  would  be  required,  before 
the  government  would  be  warranted  to  begin  levies  of 
men  for  the  protection  of  the  state.  The  blow  must 
be  received,  before  any  attempts  could  be  made  to 
ward  it  off,  or  to  return  it.  Such  a  course  of  conduct 
would  at  all  times  invite  aggression  and  insult;  and 
enable  a  formidable  rival  or  secret  enemy  to  seize  upon 
the  country,  as  a  defenceless  prey;  or  to  drain  its  re- 
sources by  a  levy  of  contributions,  at  once  irresistible 
and  ruinous.     It  would  be  in  vain  to  look  to  the  militia 


416  CONSTITUTION  OF  THE  U.  STATES.     [bOOK  III. 

for  an  adequate  defence  under  such  circumstances.  This 
reliance  came  very  near  losing  us  our  independence, 
and  was  the  occasion  of  the  useless  expenditure  of 
many  millions. 

§  579.  The  next  power  of  congress  is  "  to  provide 
"  and  maintain  a  navy." 

§  580.  Under  the  confederation  congress  possessed 
the  pov/er  "  to  build  and  equip  a  navy."  i?he  same 
language  was  adopted  in  the  original  draft  of  the  con- 
stitution, and  it  was  amended  by  substituting  the  pres- 
ent words,  apparently  without  objection,  as  more  broad 
and  appropriate.  In  the  convention,  the  propriety  of 
granting  the  power  seems  not  to  have  been  questioned. 
But  it  was  assailed  in  the  state  conventions  as  danger- 
ous. It  was  said,  that  commerce  and  navigation  are 
the  principal  sources  of  the  wealth  of  the  maritime 
powers  of  Europe ;  and  if  we  engaged  in  commerce, 
we  should  soon  become  their  rivals.  A  navy  would 
soon  be  thought  indispensable  to  protect  it.  But  the 
attempt  on  our  part  to  provide  a  navy  would  provoke 
these  powers,  who  would  not  suffer  us  to  become  a 
naval  power.  Thus,  we  should  be  immediately  involv- 
ed in  wars  with  them.  The  expenses,  too,  of  maintain- 
ing a  suitable  navy  would  be  enormous ;  and  wholly 
disproportionate  to  our  resources.  If  a  navy  should  be 
provided  at  all,  it  ought  to  be  limited  to  the  mere  pro- 
tection of  our  trade.  It  was  further  urged,  that  the 
Southern  states  would  share  a  large  portion  of  the  bur- 
thens of  maintaining  a  navy,  without  any  corresponding 
advantages. 

^581.  With  the  nation  at  large  these  objections 
were  not  deemed  of  any  validity.  The  necessity  of  a 
navy  for  the  protection  of  commerce  and  navigation 
was  not  only  admitted,  but  made  a  strong  ground  for 


CH.  XXI.]         POWERS  OF  CONGRESS NAVY.  417 

the  grant  of  the  power.  One  of  the  great  objects  of 
the  constitution  was  the  encouragement  and  protection 
of  navigation  and  trade.  Without  a  navy,  it  would  be 
utterly  impossible  to  maintain  our  right  to  the  fisheries, 
and  our  trade  and  navigation  on  the  lakes,  and  the  Mis- 
sissippi, as  well  as  our  foreign  commerce.  It  was  one 
of  the  blessings  of  the  Union,  that  it  would  be  able  to 
provide  an  adequate  support  and  protection  for  all  these 
important  objects.  Besides  ;  a  navy  would  be  abso- 
lutely indispensable  to  protect  our  whole  Atlantic  fron- 
tier, in  case  of  a  war  with  a  foreign  maritime  power. 
We  should  otherwise  be  liable,  not  only  to  the  invasion 
of  strong  regular  forces  of  the  enemy  ;  but  to  the  at- 
tacks and  incursions  of  every  predatory  adventurer. 
Our  maritime  towns  might  all  be  put  under  contribution ; 
and  even  the  entrance  and  departure  from  our  own 
ports  be  interdicted  at  the  caprice,  or  the  hostility  of  a 
foreign  power.  It  would  also  be  our  cheapest,  as  well 
as  our  best  defence  ;  as  it  would  save  us  the  expense 
of  numerous  forts  and  garrisons  upon  the  sea-coast, 
which,  though  not  effectual  for  all,  would  still  be  requir- 
ed for  some  purposes.  In  short,  in  a  maritime  warfare, 
without  this  means  of  defence,  our  commerce  would  be 
driven  from  the  ocean,  our  ports  would  be  blockaded, 
our  sea-coast  infested  with  plunderers,  and  our  vital  in- 
terests put  at  hazard. 

§  582.  Although  these  considerations  were  decisive 
with  the  people  at  large  in  favour  of  the  power,  from 
its  palpable  necessity  and  importance  to  all  the  great 
interes  s  of  the  country,  it  is  within  the  memory  of  all 
of  us,  that  the  same  objections  for  a  long  time  prevailed 
with  a  leading  party  in  the  country.  It  was  not  until 
during  the  late  war  with  Great  Britain,  when  our  little 
navy,  by  a  gallantry  and  brilliancy  of  achievement  al- 

Ahr.  53 


418  CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 

most  without  parallel,  had  literally  fought  itself  into  fa- 
vour, that  the  nation  at  large  began  to  awake  from  its 
lethargy  on  this  subject,  and  to  insist  upon  a  policy, 
which  should  at  once  make  us  respected  and  formida- 
ble abroad,  and  secure  protection  and  honor  at  home. 
It  has  been  proudly  said  by  a  learned  commentator  on 
the  laws  of  England,  that  the  royal  navy  of  England 
hath  ever  been  its  greatest  defence  and  ornament.  It 
is  its  ancient  and  natural  strength ;  the  floating  bul- 
wark of  the  island ;  an  army,  from  which,  however 
strong  and  powerful,  no  danger  can  be  apprehended  to 
liberty.  Every  American  citizen  ought  to  cherish  the 
same  sentiment,  as  applicable  to  the  navy  of  his  own 
country. 

^  583.  The  next  power  of  congress  is  "  to  make 
"  rules  for  the  government  and  regulation  of  the  land  and 
"  naval  forces."  This  is  a  natural  incident  to  the  pre- 
ceding powers  to  make  war,  to  raise  armies,  and  to  pro- 
vide and  maintain  a  navy.  Its  propriety,  therefore, 
scarcely  could  be,  and  never  has  been  denied,  and  need 
not  now  be  insisted  on.  The  clause  was  not  in  the 
original  draft  of  the  constitution ;  but  was  added  with- 
out objection  by  way  of  amendment.  It  was  without 
question  borrowed  from  a  corresponding  clause  in  the 
articles  of  confederation,  where  it  was  with  more  pro- 
priety given,  because  there  was  a  prohibition  of  all  im- 
plied powers.  In  Great  Britain,  the  king,  in  his  capac- 
ity of  generalissimo  of  the  whole  kingdom,  has  the  sole< 
power  of  regulating  fleets  and  armies.  But  parliament 
has  repeatedly  interposed ;  and  the  regulation  of  both 
is  now  in  a  considerable  measure  provided  for  by  acts 
of  parliament.  The  whole  power  is  far  more  safe  in 
the  hands  of  congress,  than  of  the  executive ;  since 
otherwise  the  most  summary  and  severe  punishments 
might  be  inflicted  at  the  mere  will  of  the  executive. 


CH.  XXI.]  POWERS  OF  CONGRESS NAVY.  419 

^  584.  It  is  a  natural  result  of  the  sovereignty  over 
the  navy  of  the  United  States,  that  it  should  be  exclu- 
sive. Whatever  crimes,  therefore,  are  .committed  on 
board  of  public  ships  of  war  of  the  United  States, 
whether  they  are  in  port  or  at  sea,  they  are  exclusively 
cognizable  and  punishable  by  the  government  of  the 
United  States.  The  public  ships  of  sovereigns,  wher- 
ever they  may  be,  are  deemed  to  be  extraterritorial,  and 
enjoy  the  immunities  from  the  local  jurisdiction,  which 
belong  to  their  sovereign. 


4 


420 


CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 


CHAPTER  XXII. 


POWER  OVER  THE  MILITIA. 


§  585.  The  next  power  of  congress  is  "  to  provide  for 
"  calling  forth  the  militia  to  execute  the  laws  of  the 
"  Union,  suppress  insurrections,  and  repel  invasions." 

^  586.  This  clause  seems,  after  a  slight  amendment, 
to  have  passed  the  convention  without  opposition.  It 
cured  a  defect  severely  felt  under  the  confederation, 
which  contained  no  provision  on  the  subject. 

§  587.  The  power  of  regulating  the  militia,  and  of 
commanding  its  services  to  enforce  the  laws,  and  to 
suppress  insurrections,  and  repel  invasions,  is  a  natural 
incident  to  the  duty  of  superintending  the  common  de- 
fence, and  preserving  the  internal  peace  of  the  nation. 
In  short,  every  argument,  which  is  urged,  or  can  be 
urged  against  standing  armies  in  time  of  peace,  applies 
forcibly  to  the  propriety  of  vesting  this  power  in  the 
national  government.  There  is  but  one  of  two  alterna- 
tives, which  can  be  resorted  to  in  cases  of  insurrection, 
invasion,  or  violent  opposition  to  the  laws ;  either  to  em- 
ploy regular  troops,  or  to  employ  the  militia  to  sup- 
press them.  In  ordinary  cases,  indeed,  the  resistance 
to  the  laws  may  be  put  down  by  the  posse  comitatus, 
or  the  assistance  of  the  common  magistracy.  But  cases 
may  occur,  in  which  such  a  resort  would  be  utterly 
vain,  and  even  mischievous ;  since  it  might  encourage 
the  factious  to  more  rash  measures,  and  prevent  the 
application  of  a  force,  which  would  at  once  destroy  the 
hopes  and  crush  the  efforts  of  the  disaffected.  The 
general  power  of  the  government  to  pass  all  laws  ne- 


ex.  XXII.]     POWERS  OF  CONGRESS MILITIA.  421 

cessary  and  proper  to  execute  its  declared  powers, 
would  doubtless  authorize  laws  to  call  forth  the  posse 
comitatus,  and  employ  the  common  magistracy,  in  cases, 
where  such  measures  would  suit  the  emergency.  But 
if  the  militia  could  not  be  called  in  aid,  it  would  be  abso- 
lutely indispensable  to  the  common  safety  to  keep  up  a 
strong  regular  force  in  time  of  peace.  The  latter  would 
certainly  not  be  desirable,  or  economical ;  and  therefore 
this  power  over  the  militia  is  highly  salutary  to  the  pub- 
lic repose,  and  at  the  same  time  an  additional  security 
to  the  public  liberty.  In  times  of  insurrection  or  inva- 
sion, it  would  be  natural  and  proper,  that  the  militia  of 
a  neighbouring  state  should  be  marched  into  another  to 
resist  a  common  enemy,  or  guard  the  republic  against 
the  violences  of  a  domestic  faction  or  sedition.  But  it 
is  scarcely  possible,  that  in  the  exercise  of  the  power 
the  militia  should  ever  be  called  to  march  great  distan- 
ces, since  it  would  be  at  once  the  most  expensive  and 
the  most  inconvenient  force,  which  the  government  could 
employ  for  distant  expeditions.  The  regulation  of  the 
whole  subject  is  always  to  be  in  the  power  of  congress ; 
and  it  may  from  time  to  time  be  moulded  so,  as  to 
escape  from  all  dangerous  abuses. 

^  588.  The  next  power  of  congress  is,  "  to  provide 
"for  organizing,  arming,  and  disciplining  the  mihtia,  and 
"  for  governing  such  part  of  them,  as  may  be  employed 
"in  the  service  of  the  United  States;  reserving  to  the 
"  states  respectively  the  appointment  of  the  officers, 
"  and  the  authority  of  training  the  militia  according  to 
"  the  discipline  prescribed  by  congress." 

^  589.  This  power,  has  a  natural  connexion  with  the 
preceding,  and,  if  not  indispensable  to  its  exercise,  fur- 
nishes the  only  adequate  means  of  giving  it  prompti- 
tude and  efficiency  in  its  operations.     It  requires  no 


422     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

skill  in  the  science  of  war  to  discern,  that  unilormity  in 
the  organization  and  discipline  of  the  militia  will  be  at- 
tended with  the  most  beneficial  effects,  whenever  they 
are  called  into  active  service.  It  will  enable  them  to 
discharge  the  duties  of  the  camp  and  field  with  mutual 
intelligence  and  concert,  an  advantage  of  peculiar  mo- 
ment in  the  operations  of  an  army ;  and  it  will  enable 
them  to  acquire,  in  a  much  shorter  period,  that  degree 
of  proficiency  in  military  functions,  which  is  essential  to 
their  usefulness.  Such  an  uniformity,  it  is  evident,  can 
be  attained  only  through  the  superintending  power  of 
the  national  government. 

§  590.  Several  questions  of  great  practical  import- 
ance have  arisen  under  the  clauses  of  the  constitu- 
tion respecting  the  militia,  which  deserve  mention 
in  this  place.  It  is  observable,  that  power  is  given 
to  congress  "  to  provide  for  calling  forth  the  militia 
"  to  execute  the  laws  of  the  Union,  suppress  insurrec- 
"  tions,  and  repel  invasions."  Accordingly,  congress 
in  1795,  in  pursuance  of  this  authority,  and  to  give  it  a 
practical  operation,  provided  by  law,  "  that  whenever 
the  United  States  shall  be  invaded,  or  be  in  imminent 
danger  of  invasion  from  any  foreign  nation  or  Indian 
tribe,  it  shall  be  lawful  for  the  president  to  call  forth 
such  number  of  the  miUtia  of  the  state,  or  states  most 
convenient  to  the  place  of  danger,  or  scene  of  action, 
as  he  may  judge  necessary,  to  repel  such  invasion,  and 
to  issue  his  order  for  that  purpose  to  such  officer  or 
oflicers  of  the  miUtia,  as  he  shall  think  proper."  Like 
provisions  are  made  for  the  other  cases  stated  in  the 
constitution.  The  constitutionality  of  this  act  has  not 
been  questioned,  although  it  provides  for  calling  forth 
the  militia,  not  only  in  cases  ofinvasion,  but  of  imminent 
danger  of  invasion ;   for  the  power  to  repel  invasions 


CH.  XXII.]      POWERS  OF  CONGRESS MILITIA.  423 

must  include  the  power  to  provide  against  any  attempt 
and  danger  of  invasion,  as  the  necessary  and  proper 
means  to  effectuate  the  object.  One  of  the  best  means 
to  repel  invasion  is,  to  provide  the  requisite  force  for 
action,  before  the  invader  has  reached  the  territory  of 
the  nation.  Nor  can  there  be  a  doubt,  that  the  presi- 
dent, who  is  (as  will  be  presently  seen)  by  the  consti* 
tution  the  commander-in-chief  of  the  army  and  navy  of 
the  United  States,  and  of  the  militia,  when  called  into  the 
actual  service  of  the  United  States,  is  the  proper  func- 
tionary, to  whom  this  high  and  delicate  trust  ought  to 
be  confided.  A  free  people  will  naturally  be  jealous  of 
the  exercise  of  military  power;  and  that  of  calling  forth 
the  militia  is  certainly  one  of  no  ordinary  magnitude. 
It  is,  however,  a  power  limited  in  its  nature  to  certain 
exigencies ;  and  by  whomsoever  it  is  to  be  executed,  it 
carries  with  it  a  corresponding  responsibility.  Who  is 
so  fit  to  exercise  the  power,  and  to  incur  the  responsi- 
bility, as  the  president  ? 

^591.  But  a  most  material  question  arises :  By 
whom  is  the  exigency  to  be  decided  1  Is  the  president 
the  sole  and  exclusive  judge,  whether  the  exigency  has 
arisen  ?  Or  is  it  to  be  considered,  as  an  open  question, 
which  every  oflficer,  to  whom  the  orders  of  the  presi- 
dent are  addressed,  may  decide  for  himself,  and  equal- 
ly open  to  be  contested,  by  every  militia-man,  who 
shall  refuse  to  obey  the  orders  of  the  president  ? 

^  592.  At  a  very  recent  period,  the  question  came 
before  the  Supreme  Court  of  the  United  States  for  a 
judicial  decision;  and  it  was  then  unanimously  deter- 
mined, that  the  authority  to  decide,  whether  the  exi- 
gency has  arisen,  belongs  exclusively  to  the  president ; 
and  that  his  decision  is  conclusive  upon  all  other  per- 
sons.     The  court  said,  that  this  construction  necessa- 


424        CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

rily  resulted  from  the  nature  of  the  power  itself,  and 
from  the  manifest  objects  contemplated  by  the  act  of 
congress.  The  power  itself  is  to  be  exercised  upon 
sudden  emergencies,  upon  great  occasions  of  state,  and 
under  circumstances,  which  may  be  vital  to  the  exist- 
ence of  the  Union.  A  prompt  and  unhesitating  obe- 
dience to  orders  is  indispensable  to  the  complete  at- 
tainment of  the  object.  The  service  is  a  military  ser- 
vice, and  the  command  of  a  miltary  nature ;  and  in 
such  cases,  every  delay  and  every  obstacle  to  an  effi- 
cient and  immediate  compliance  would  necessarily  tend 
to  jeopard  the  public  interests.  While  subordinate  offi- 
cers or  soldiers  are  pausing  to  consider,  whether  they 
ought  to  obey,  or  are  scrupulously  weighing  the  facts, 
upon  which  the  commander-in-chief  exercises  the  right 
to  demand  their  services,  the  hostile  enterprize  may  be 
accomplished,  without  the  means  of  resistance.  If  the 
power  of  regulating  the  militia,  and  of  commanding  its 
services  in  times  of  insurrection  and  invasion,  are,  as  it 
has  been  emphatically  said,  they  are,  natural  incidents 
to  the  duties  of  superintending  the  common  defence, 
and  of  watching  over  the  internal  peace  of  the  confed- 
eracy, these  powers  must  be  so  construed,  as  to  the 
modes  of  their  exercise,  as  not  to  defeat  the  great  end 
in  view.  If  a  superior  officer  has  a  right  to  contest  the 
orders  of  the  president,  upon  his  own  doubts,  as  to  the 
exigency  having  arisen,  it  must  be  equally  the  right  of 
every  inferior  officer  and  soldier.  And  any  act  done 
by  any  person  in  furtherance  of  such  orders  would 
subject  li  m  to  responsibility  in  a  civil  suit,  in  which  his 
defence  must  finally  rest  upon  his  ability  to  establish 
the  facts  by  competent  proofs.  Besides ;  in  many  in- 
stances the  evidence,  upon  which  the  president  might 
decide,^ that  there  was  imminent  danger  of  invasion, 


eft.  lill.]      POWERS  OF  CONGRESS MILITIA.  425 

might  be  of  a  nature  not  constituting  strict  technical 
proof ;  or  the  disclosure  of  the  evidence  might  reveal 
important  state  secrets,  which  the  public  interest,  and 
even  safety,  might  imperiously  demand  to  be  kept  in 
concealment. 

^  593.  The  power  to  govern  the  militia,  when  in  the 
actual  service  of  the  United  States,  is  denied  by  no  one 
to  be  an  exclusive  one.  Indeed,  from  its  very  nature, 
it  must  be  so  construed;  for  the  notion  of  distinct  and 
independent  orders  from  authorities  wholly  unconnect- 
ed, would  be  utterly  inconsistent  with  that  unity  of 
command  and  action,  on  which  the  success  of  all  mili- 
tary operations  must  essentially  depend.  But  there  is 
nothing  in  the  constitution,  which  prohibits  a  state  from 
calling  forth  its  own  miHtia,  not  detached  into  the  ser- 
vice of  the  Union,  to  aid  the  United  States  in  executing 
the  laws,  in  suppressing  insurrections,  and  in  repelling 
invasions.  Such  a  concurrent  exercise  of  power  in  no 
degree  interferes  with,  or  obstructs  the  exercise  of  the 
powers  of  the  Union.  Congress  may,  by  suitable  laws, 
provide  for  the  calling  forth  of  the  miUtia,  and  annex 
suitable  penalties  to  disobedience  of  their  orders,  and 
direct  the  manner,  in  which  the  delinquents  may  be 
tried.  But  the  authority  to  call  forth,  and  the  authority 
exclusively  to  govern,  are  quite  distinct  in  their  nature. 
The  question,  when  the  authority  of  congress  over  the 
militia  becomes  exclusive,  must  essentially  depend  upon 
the  fact,  when  they  are  to  be  deemed  in  the  actual  ser- 
vice of  the  United  States.  There  is  a  clear  distinction 
between  calling  forth  the  militia,  and  their  being  in 
actual  service.  These  are  not  contemporaneous  acts, 
nor  necessarily  identical  in  their  constitutional  bearings. 
The  president  is  commander-in-chief  of  the  militia, 
when  in  actual  service  ;  and  not,  when  they  are  mere- 
Abr.  54 


426     CONSTITUTIOX  OF  THE  U.  STATES.  [bOOK  III. 

\y  ordered  into  service.  They  are  subjected  to 
martial  law  only,  when  in  actual  service,  and  not 
merely  when  called  forth,  before  they  have  obeyed  the 
call. 


I 


CH.  XXIII.]    POWERS  OF  CONGRESS  —  CESSIONS.        427 


CHAPTER  XXIII. 

POWER  OVER  SEAT  OF  GOVERNMENT  AND  OTHER 
CEDED  PLACES. 

§  594.  The  next  power  of  congress  is,  "to exercise 
"  exclusive  legislation  in  all  cases  whatsoever  over  such 
"  district,  not  exceeding  ten  miles  square,  as  may,  by 
"  cession  of  particular  states  and  the  acceptance  of  con- 
"gress,  become  the  seat  of  the  government  of  the 
"United  States  ;  and  to  exercise  like  authority  over  all 
"  places  purchased  by  the  consent  of  the  legislature  of 
"  the  state,  in  which  the  same  shall  be,  for  the  erection 
"of  FORTS,  MAGAZINES,  ARSENALS,  and  Other  nccdful 
"  buildings." 

§  595.  The  indispensable  necessity  of  complete  and 
exclusive  power,  on  the  part  of  the  congress,  at  the  seat 
of  government,  carries  its  own  evidence  with  it.  It  is  a 
power  exercised  by  every  legislature  of  the  Union,  and 
one  might  say  of  the  world,  by  virtue  of  its  general  su- 
premacy. Without  it,  not  only  the  public  authorities 
might  be  insulted,  and  their  proceedings  be  interrupted 
with  impunity ;  but  the  public  archives  might  be  in 
danger  of  violation,  and  destruction,  and  a  dependence 
of  the  members  of  the  national  government  on  the  state 
authorities  for  protection  in  the  discharge  of  their  func- 
tions be  created,  which  would  bring  upon  the  national 
councils  the  imputation  of  being  subjected  to  undue  awe 
and  influence,  and  might,  in  times  of  high  excitement, 
expose  their  Hves  to  jeopardy.  It  never  could  be  safe 
to  leave  in  possession  of  any  state  the  exclusive  power 
to  decide,  whether  the  functionaries  of  the  national  gov- 


428  CONSTITUTION  OF  THE  U.  STATES.    [bOOji  iii. 

ernment  should  have  the  moral  or  physical  power  to 
perform  their  duties.  It  might  subject  the  favoured  state 
to  the  most  unrelenting  jealousy  of  the  other  states,  and 
introduce  earnest  controversies  from  time  to  time  re- 
specting the  removal  of  the  seat  of  government. 

§  596.  Nor  can  the  cession  be  justly  an  object  of 
jealousy  to  any  state ;  or  in  the  sHghtest  degree  impair 
its  sovereignty.  The  ceded  district  is  of  a  very  narrow 
extent ;  and  it  rests  in  the  option  of  the  state,  whether 
it  shall  be  made  or  not.  There  can  be  little  doubt,  that 
the  inhabitants  composing  it  would  receive  with  thank- 
fulness such  a  blessing,  since  their  own  importance 
would  be  thereby  increased,  their  interests  be  subserv- 
ed, and  their  rights  be  under  the  immediate  protection 
of  the  representatives  of  the  whole  Union.  It  is  not 
improbable,  that  an  occurrence,  at  the  very  close  of  the 
revolutionary  war,  had  a  great  effect  in  introducing  this 
provision  into  the  constitution.  At  the  period  alluded 
to,  the  congress,  then  sitting  at  Philadelphia,  was  sur- 
rounded, and  insulted  by  a  small,  but  insolent  body  of 
mutineers  of  the  continental  army.  Congress  applied 
to  the  executive  authority  of  Pennsylvania  for  defence  ; 
but,  under  the  ill-conceived  constitution  of  the  state  at 
that  time,  the  executive  power  was  vested  in  a  council 
consisting  of  thirteen  members ;  and  they  possessed,  or 
exhibited  so  little  energy,  and  such  apparent  intimida- 
tion, that  congress  indignantly  removed  to  New -Jersey, 
whose  inhabitants  welcomed  them  with  promises  of 
defending  them.  Congress  remained  for  some  time  at 
Princeton  without  being  again  insulted,  till,  for  the  sake 
of  greater  convenience,  they  adjourned  to  Annapohs. 
The  general  dissatisfaction  with  the  proceedings  of 
Pennsylvania,  and  the  degrading  spectacle  of  a  fugitive 
congress,  were    sufficiently    striking   to  produce  this 


CH.  XXIII.]    POWERS  OF  CONGRSSS CESSIONS.  429 

remedy.  Indeed,  if  such  a  lesson  could  have  been  lost 
upon  the  people,  it  would  have  been  as  humiliating  to 
their  intelligence,  as  it  would  have  been  offensive  to 
their  honour. 

§  597.  The  other  part  of  the  power,  giving  exclusive 
legislation  over  places  ceded  for  the  erection  of  forts, 
magazines,  &c.,  seems  still  more  necessary  for  the 
public  convenience  and  safety.  The  public  money  ex- 
pended on  such  places,  and  the  public  property  depos- 
ited in  them,  and  the  nature  of  the  military  duties,  which 
may  be  required  there,  all  demand,  that  they  should  be 
exempted  from  state  authority.  In  truth,  it  would  be 
wholly  improper,  that  places,  on  which  the  security  of 
the  entire  Union  may  depend,  should  be  subjected  to 
the  control  of  any  member  of  it.  The  power,  indeed, 
is  wholly  unexceptionable  ;  since  it  can  only  be  exer- 
cised at  the  will  of  the  state  ;  and  it  is  therefore  placed 
beyond  all  reasonable  scruple. 

§  598.  A  great  variety  of  cessions  have  been  made 
by  the  states  under  this  power.  And  generally  there 
has  been  a  reservation  of  the  right  to  serve  all  state 
process,  civil  and  criminal,  upon  persons  found  therein. 
This  reservation  has  not  been  thought  at  all  inconsis- 
tent with  the  provisions  of  the  constitution ;  for  the  state 
process,  quoad  hoc,  becomes  the  process  of  of  the  Unit- 
ed States,  and  the  general  power  of  exclusive  legisla- 
tion remains  with  congress.  Thus,  these  places  are  not 
capable  of  being  made  a  sanctuary  for  fugitives,  to  ex- 
empt them  from  acts  done  within,  and  cognizable  by, 
the  states,  to  which  the  territory  belonged ;  and  at  the 
same  time  congress  is  enabled  to  accomplish  the  great 
objects  of  the  power. 

^  599.  The  power  of  congress  to  exercise  exclu- 
sive jurisdiction  over  these  ceded  places  is  conferred  on 


430  CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

that  body,  as  the  legislature  of  the  Union ;  and  cannot 
be  exercised  in  any  other  character.  A  law  passed  in 
pursuance  of  it  is  the  supreme  law  of  the  land,  and  bind- 
ing on  all  the  states,  and  cannot  be  defeated  by  them. 
The  power  to  pass  such  a  law  carries  with  it  all  the  in- 
cidental powers  to  give  it  complete  and  effectual  exe- 
cution ;  and  such  a  law  may  be  extended  in  its  opera- 
tion incidentally  throughout  the  United  States,  if 
congress  think  it  necessary  so  to  do.  But  if  intended 
to  have  efficiency  beyond  the  district,  language  must  be 
used  in  the  act  expressive  of  such  an  intention;  other- 
wise it  will  be  deemed  purely  local. 


CH.  XXIV.]    POWERS  OF  CONGRESS INCIDENTAL.    431 

CHAPTER  XXIV. 

POWERS  OF  CONGRESS INCIDENTAL. 

§  600.  The  next  power  of  congress  is,  "to  make 
"  all  laws,  which  shall  be  necessary  and  proper  for  car- 
"  rying  into  execution  the  foregoing  powers,  and  all 
"  other  powers  vested  by  this  constitution  in  the  gov- 
'*  eminent  of  the  United  States,  or  in  any  department, 
"  or  officer  thereof." 

§  601.  Few  powers  of  the  government  were  at  the 
time  of  the  adoption  of  the  constitution  assailed  with 
more  severe  invective,  and  more  declamatory  intem- 
perance, than  this.  And  it  has  ever  since  been  made  a 
theme  of  constant  attack,  and  extravagant  jealousy.  Yet 
it  is  difficult  to  perceive  the  grounds,  upon  which  any  ob- 
jection can  be  maintained,  or  the  logic,  by  which  it  can  be 
reasoned  out.  The  clause  is  only  declaratory  of  a  truth, 
which  would  have  resulted  by  necessary  and  unavoidable 
implication  from  the  very  act  of  establishing  the  national 
government,  and  investing  it  with  certain  powers.  What 
is  a  power,  but  the  ability  or  faculty  of  doing  a  thing  ? 
What  is  the  ability  to  do  a  thing,  but  the  power  of  em- 
ploying the  means  necessary  to  its  execution  7  What 
is  a  legislative  power,  but  a  power  of  making  laws  ? 
What  are  the  means  to  execute  a  legislative  pov^^er,  but 
laws?  What  is  the  power  for  instance,  of  laying 
and  collecting  taxes,  but  a  legislative  power,  or  a 
power  to  make  laws  to  lay  and  collect  taxes  ?  What 
are  the  proper  means  of  executing  such  a  power,  but 
necessary  and  proper  laws  7  In  truth,  the  constitution- 
al operation  of  the  government  would  be  precisely  the 


432     CONSTITUTION  OF  THE  U.  STATES.   [BOOK  III. 

same,  if  the  clause  were  obliterated,  as  if  it  were  re- 
peated in  every  article.  It  would  otherwise  result,  that 
the  power  could  never  be  exercised ;  that  is,  the  end 
would  be  required,  and  yet  no  means  allowed.  This 
would  be  a  perfect  absurdity.  It  would  be  to  create 
powers,  and  compel  them  to  remain  for  ever  in  a  torpid, 
dormant,  and  paralytic  state.  It  cannot,  therefore,  be 
denied,  that  the  powers,  given  by  the  constitution,  imply 
the  ordinary  means  of  execution  ;  for  without  the  sub- 
stance of  the  power  the  constitution  would  be  a  dead 
letter. 

^  602.  If,  then,  the  clause  imports  no  more,  than 
would  result  from  necessary  implication,  it  may  be  ask- 
ed, why  it  was  inserted  at  all.  The  true  answer  is^ 
that  such  a  clause  was  peculiarly  useful,  in  order  to 
avoid  any  doubt,  Avhich  ingenuity  or  jealousy  might 
raise  upon  the  subject.  Much  plausible  reasoning 
might  be  employed  by  those,  who  were  hostile  to  the 
Union,  and  in  favour  of  state  power,  to  prejudice  the 
people  on  such  a  subject,  and  to  embarrass  the  govern- 
ment in  all  its  reasonable  operations.  Besides;  as 
the  confederation  contained  a  positive  clause,  restrain- 
ing the  authority  of  congress  to  powers  expressly 
granted,  there  was  a  fitness  in  declaring,  that  that  rule 
of  interpretation  should  no  longer  prevail.  The  very 
zeal,  indeed,  with  which  the  present  clause  has  been 
always  assailed,  is  the  highest  proof  of  its  importance 
and  propriety.  It  has  narrowed  down  the  grounds  of 
hostility  to  the  mere  interpretation  of  the  terms. 

§  603.  The  plain  import  of  the  clause  is,  that  con- 
gress shall  have  all  the  incidental  and  instrumental 
powers,  necessary  and  proper  to  carry  into  execution 
all  the  express  powers.  It  neither  enlarges  any  power 
specifically  granted ;    nor  is  it   a  grant  of  any  new 


CH.  XXIV.]  POWERS  OF  CONGRESS-INCIDENTAL.      433 

power  to  congress.  But  it  is  merely  a  declaration  for 
the  removal  of  all  uncertainty,  that  the  means  of  carry- 
ing into  execution  those,  otherwise  granted,  are  included 
in  the  grant.  Whenever,  therefore,  a  question  arises 
concerning  the  constitutionality  of  a  particular  power,  the 
first  question  is,  whether  the  power  be  expressed  in  the 
constitution.  If  it  be,  the  question  is  decided.  If  it 
be  not  expressed,  the  next  inquiry  must  be,  whether  it  is 
properly  an  incident  to  an  express  power,  and  neces- 
sary and  proper  to  its  execution.  If  it  be,  then  it 
may  be  exercised  by  congress.  If  not,  congress  can- 
not exercise  it. 

^  604.  But  still  a  ground  of  controversy  remains 
open,  as  to  the  true  interpretation  of  the  terms  of 
the  clause ;  and  it  has  been  contested  with  no  small 
share  of  earnestness  and  vigour.  What,  then,  is  the 
true  constitutional  sense  of  the  words  "  necessary 
and  proper "  in  this  clause  7  It  has  been  insisted  by 
the  advocates  of  a  rigid  interpretation,  that  the  word 
"  necessary  "  is  here  used  in  its  close  and  most  intense 
meaning;  so  that  it  is  equivalent  to  absolutely  and 
indispensably  necessary.  It  has  been  said,  that  the 
constitution  allows  only  the  means,  which  are  neces- 
sary ;  not  those,  which  are  merely  convenient  for  effect- 
ing the  enumerated  powers.  If  such  a  latitude  of 
construction  be  given  to  this  phrase,  as  to  include  any 
non-enumerated  power,  it  will  go  far  to  include  every 
one ;  for  there  is  no  one,  which  ingenuity  might  not 
torture  into  a  convenience  in  some  way  or  other  to 
some  one  of  so  long  a  list  of  enumerated  powers.  It 
would  swallow  up  all  the  delegated  powers,  and  reduce 
the  whole  to  one  phrase.  Therefore  it  is,  that  the  con- 
stitution has  restrained  congress  to  the  necessary  means; 
that  is  to  say,  to  those  means,  without  which  the  grant  of 

Ahr.  55 


434     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

the  power  would  he  nugatory,  A  little  difference  in  the 
degree  of  convenience  cannot  constitute  the  necessity, 
which  the  constitution  refers  to. 

^  605.  The  effect  of  this  mode  of  interpretation  is 
to  exclude  all  choice  of  means  ;  or,  at  most,  to  leave  to 
congress  in  each  case  those  only,  which  are  most  direct 
and  simple.  If,  indeed,  such  implied  powers,  and  such 
only,  as  can  be  shown  to  be  indispensably  necessary,  are 
within  the  purview  of  the  clause,  there  will  be  no  end  to 
difficulties,  and  the  express  powers  must  practically  be- 
come a  mere  nullity.  It  will  be  found,  that  the  opera- 
tions of  the  government,  upon  any  of  its  powers,  will 
rarely  admit  of  a  rigid  demonstration  of  the  necessity 
(in  this  strict  sense)  of  any  particular  means.  In  most 
cases,  various  systems  or  means  may  be  resorted  to, 
to  attain  the  same  end ;  and  yet,  with  respect  to  each, 
it  may  be  argued,  that  it  is  not  constitutional,  because 
it  is  not  indispensable ;  and  the  end  may  be  obtained 
by  other  means.  The  consequence  of  such  reasoning 
would  be,  that,  as  no  means  could  be  shown  to  be  con- 
stitutional, none  could  be  adopted.  Fdr  instance,  con- 
gress possess  the  power  to  make  war,  and  to  raise  ar- 
mies, and  incidentally  to  erect  fortifications,  and  purchase 
cannon  and  ammunition  and  other  munitions  of  war. 
But  war  may  be  carried  on  without  fortifications,  can- 
non, and  ammunition.  No  particular  kind  of  arms  can 
be  shown  to  be  absolutely  necessary ;  because  various 
sorts  of  arms  of  different  convenience,  power,  and  utili- 
ty are,  or  may  be  resorted  to  by  different  nations. 
What  then  becomes  of  the  power?  Congress  has 
power  to  borrow  money,  and  to  provide  for  the  pay- 
ment of  the  public  debt ;  yet  no  particular  method  is 
indispensable  to  these  ends.  They  may  be  attained  by 
various  means.     Congress  has  power  to  provide  a  navy ; 


CH.  XXIV.]    POWERS  OF  CONGRESS -INCIDENTAL.    435 

but  no  particular  size,  or  form,  or  equipment  of  ships 
is  indispensable.  The  means  of  providing  a  naval  es- 
tablishment are  very  various ;  and*  the  applications  of 
them  admit  of  infinite  shades  of  opinion,  as  to  their 
convenience,  utility,  and  necessity.  What  then  is  to  be 
done  ?  Are  the  powers  to  remain  dormant  1  Would 
it  not  be  absurd  to  say,  that  congress  did  not  possess 
the  choice  of  means  under  such  circumstances,  and 
were  not  empowered  to  select,  and  use  any  means, 
which  are  in  fact  conducive  to  the  exercise  of  the 
powers  granted  by  the  constitution?  Take  anoth- 
er example ;  congress  has,  doubtless,  the  authority, 
under  the  power  to  regulate  commerce,  to  erect  hght- 
houses,  beacons,  buoys,  and  public  piers,  and  authorize 
the  employment  of  pilots.  But  it  cannot  be  affirmed, 
that  the  exercise  of  these  powers  is  in  a  strict  sense 
necessary ;  or  that  the  power  to  regulate  commerce 
would  be  nugatory  without  establishments  of  this  na- 
ture. In  truth,  no  particular  regulation  of  commerce 
can  ever  be  shown  to  be  exclusively  and  indispensably 
necessary  ;  and  thus  we  should  be  driven  to  admit,  that 
all  regulations  are  within  the  scope  of  the  power,  or 
that  none  are.  If  there  be  any  general  principle,  which 
is  inherent  in  the  very  definition  of  government,  and 
essential  to  every  step  of  the  progress  to  be  made  by 
that  of  the  United  States,  it  is,  that  every  power,  vested 
in  the  government,  is  in  its  nature  sovereign,  and  in- 
cludes, by  force  of  the  term,  a  right  to  employ  all  the 
means  requisite,  and  fairly  applicable  to  the  attainment 
of  the  end  of  such  power  ;  unless  they  are  excepted  in 
the  constitution,  or  are  immoral,  or  are  contrary  to  the 
essential  objects  of  political  society.  * 

§  606.  There  is  another  diflSculty  in  the  strict  con- 
struction above  alluded  to,  that  it  makes  the  constitu- 


436    CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

tional  authority  depend  upon  casual  and  temporary  cir- 
cumstances, which  may  produce  a  necessity  to-day,  and 
change  it  to-morrow'.  This  alone  shows  the  fallacy  of 
the  reasoning.  The  expediency  of  exercising  a  partic- 
ular power  at  a  particular  time  must,  indeed,  depend  on 
circumstances ;  but  the  constitutional  right  of  exercising 
it  must  be  uniform  and  invariable  ;  the  same  to-day,  as 
to-morrow. 

§  607.  Neither  can  the  degree,  in  which  a  measure 
is  necessary,  ever  be  a  test  of  the  legal  right  to  adopt 
it.  That  must  be  a  matter  of  opinion,  (upon  which 
different  men,  and  different  bodies  may  form  opposite 
judgments,)  and  can  only  be  a  test  of  expediency. 
The  relation  between  the  measure  and  the  end,  be- 
tween the  nature  of  the  means  employed  towards  the 
execution  of  a  power,  and  the  object  of  that  power, 
must  be  the  criterion  of  constitutionality  ;  and  not  the 
greater  or  less  necessity  or  expediency.  If  the 
legislature  possess  a  right  of  choice  as  to  the  means, 
who  can  limit  that  choice?  Who  is  appointed  an  um- 
pire, or  arbiter  in  cases,  where  a  discretion  is  confided 
to  a  government?  The  very  idea  of  such  a  controlling 
authority  in  the  exercise  of  its  powers  is  a  virtual  de- 
nial of  the  supremacy  of  the  government  in  regard  to 
its  powers.  It  repeals  the  supremacy  of  the  national 
government,  proclaimed  in  the  constitution. 

§  608.  It  is  equally  certain,  that  neither  the  gram- 
matical, nor  the  popular  sense  of  the  word,  "necessary," 
requires  any  such  construction.  According  to  both, 
"  necessary  "  often  means  no  more  than  needful,  requi- 
site, incidental,  useful,  or  conducive  to.  It  is  a  common 
mode  of  expression  to  say,  that  it  is  necessary  for  a 
government,  or  a  person,  to  do  this  or  that  thing,  when 
nothing  more  is  intended  or  understood,  than  that  the 


CH.  XXIV.]  POWERS  OF  CONGRESS  -  INCIDENTAL.    437 

interest  of  the  government  or  person  requires,  or  will 
be  promoted  by,  the  doing  of  this  or  that  thing.  Every 
one's  mind  will  at  once  suggest  to  him  many  illustra- 
tions of  the  use  of  the  word  in  this  sense.  To  em- 
ploy the  means,  necessary  to  an  end,  is  generally  un- 
derstood, as  employing  any  means  calculated  to  produce 
the  end,  and  not  as  being  confined  to  those  means 
alone,  without  which  the  end  would  be  entirely  unat- 
tainable. 

§  609.  Such  is  the  character  of  human  language, 
that  no  word  conveys  to  the  mind,  in  all  situations,  one 
single  definite  idea ;  and  nothing  is  more  common,  than 
to  use  words  in  a  figurative  sense.  Almost  all  compo- 
sitions contain  words,  which,  taken  in  their  rigorous 
sense,  would  convey  a  meaning,  different  from  that, 
which  is  obviously  intended.  It  is  essential  to  just  in- 
terpretation, that  many  words,  which  import  something 
excessive,  should  be  understood  in  a  more  mitigated 
sense ;  in  a  sense,  which  common  usage  justifies.  The 
word  "  necessary  "  is  of  this  description.  It  has  not  a 
a  fixed  character  peculiar  to  itself.  It  admits  of  all  de- 
grees of  comparison  ;  and  is  often  connected  with  other 
words,  which  increase  or  diminish  the  impression,  which 
the  mind  receives  of  the  urgency  it  imports.  A  thing 
may  be  necessary,  very  necessary,  absolutely  or  indis- 
pensably necessary.  It  may  be  httle  necessary,  less 
necessary,  or  least  necessary.  To  no  mind  would  the 
same  idea  be  conveyed  by  any  two  of  these  several 
phrases.  The  tenth  section  of  the  first  article  of  the 
constitution  furnishes  a  strong  illustration  of  this  very 
use  of  the  word.  It  contains  a  prohibition  upon  any 
state  to  "  lay  any  imposts  or  duties,  &c.  except  what 
"  may  be  absolutely  necessary  for  executing  its  inspec- 
"  tion  laws."     No  one  can, compare  this  clause  with  the 


438  CONSTITUTION  OF  THE  U.  STATES.        [bOOK  III. 

Other,  on  which  we  are  commenting,  without  being 
struck  with  the  conviction,  that  the  word  "  absolutely, ^^ 
here  prefixed  to  "  necessary,"  is  intended  to  distin- 
guish it  from  the  sense,  in  which,  standing  alone,  it  is 
used  in  the  other. 

§610.  That  the  restrictive  interpretation  must  be 
abandoned,  in  regard  to  certain  powers  of  the  govern- 
ment, cannot  be  reasonably  doubted.  It  is  universally 
conceded,  that  the  power  of  punishment  appertains  to 
sovereignty,  and  may  be  exercised,  whenever  the  sove- 
reign has  a  right  to  act,  as  incidental  to  his  constitution- 
al powers.  It  is  a  means  for  carrying  into  execution 
all  sovereign  powers,  and  may  be  used,  although  not  in- 
dispensably necessary.  If,  then,  the  restricdve  inter- 
pretation must  be  abandoned,  in  order  to  justify  the 
constitutional  exercise  of  the  power  to  punish;  whence 
is  the  rule  derived,  which  would  reinstate  it,  when  the 
government  would  carry  its  powers  into  operation,  by 
means  not  vindictive  in  their  nature  ?  If  the  word, 
"  necessary  "  means  needful,  requisite,  essential,  condu- 
cive to,  to  let  in  the  power  of  punishment,  why  is  it  not 
equally  comprehensive,  when  applied  to  other  means 
used  to  facilitate  the  execution  of  the  powers  of  the 
government  ? 

§  611.  The  restrictive  interpretation  is  also  con- 
trary to  a  sound  maxim  of  construction,  generally 
admitted,  namely,  that  the  powers  contained  in  a  con- 
stitution of  government,  especially  those,  which  con- 
cern the  general  administration  of  the  affairs  of  the 
country,  such  as  its  finances,  its  trade,  and  its  defence, 
ought  to  be  hberally  expounded  in  advancement  of  the 
public  good.  This  rule  does  not  depend  on  the  par- 
ticular form  of  a  government,  or  on  the  particular  de- 
marcations of  the  boundaries  of  its  powers  ;  but  on  the 


CH.  XXIV.]    POWERS   OF  CONGRESS INCIDENTAL.    439 

nature  and  objects  of  government  itself.  The  means, 
bj  w^hich  national  exigencies  are  provided  for,  national 
inconveniences  obviated,  and  national  prosperity  pro- 
moted, are  of  such  infinite  variety,  extent,  and  com- 
plexity, that  there  must  of  necessity  be  great  latitude 
of  discretion  in  the  selection,  and  application  of  those 
means.  Hence,  consequently,  result  the  necessity  and 
propriety  of  exercising  the  authorities,  entrusted  to  a 
government,  upon  principles  of  a  liberal  construction. 

^612.  It  is  no  valid  objection  to  this  doctrine  to 
say,  that  it  is  calculated  to  extend  the  powers  of  the 
government  throughout  the  entire  sphere  of  state  leg- 
islation. The  same  thing  may  be  said,  and  has  been 
said,  in  regard  to  every  exercise  of  power  by  implica- 
tion and  construction.  There  is  always  some  chance 
of  error,  or  abuse  of  every  power  ;  but  this  furnishes 
no  ground  of  objection  against  the  power ;  and  cer- 
tainly no  reason  for  an  adherence  to  the  most  rigid 
construction  of  its  terms,  which  would  at  once  arrest 
the  whole  movements  of  the  government.  The  rem- 
edy for  any  abuse,  or  misconstruction  of  the  power, 
is  the  same,  as  in  similar  abuses  and  misconstructions 
of  the  state  governments.  It  is  by  an  appeal  to  the 
other  departments  of  the  government ;  and  finally  to 
the  people,  in  the  exercise  of  their  elective  franchises. 

§  613.  There  are  yet  other  grounds  against  the  re- 
strictive interpretation  derived  from  the  language,  and 
the  character  of  the  provision.  The  language  is,  that 
congress  shall  have  power  ''  to  make  all  laws,  which 
"  shall  be  necessary  and  proper^  If  the  word  "  ne- 
cessary "  were  used  in  the  strict  and  rigorous  sense 
contended  for,  it  would  be  an  extraordinary  departure 
from  the  usual  course  of  the  human  mind,  as  exhibited 
in  solemn  instruments,  to  add  another  word  ''  proper  ;" 


440  CONSTITUTION    OF    THE    U.    STATES.    [bOOK  III. 

the  only  possible  effect  of  which  is  to  qualify  that  strict 
and  rigorous  meaning,  and  to  present  clearly  the  idea 
of  a  choice  of  means  in  the  course  of  legislation.  If 
no  means  can  be  resorted  to,  but  such  as  are  indispen- 
sably necessary,  there  can  be  neither  sense,  nor  utility 
in  adding  the  other  word  ;  for  the  necessity  shuts  out 
from  view  all  consideration  of  the  propriety  of  the 
means,  as  contradistinguished  from  the  former.  But 
if  the  intention  was  to  use  the  word  "  necessary  "  in 
its  more  liberal  sense,  then  there  is  a  peculiar  fitness 
in  the  other  word.  It  has  a  sense  at  once  admonitory, 
and  directory.  It  requires,  that  the  means  should' be, 
honti  fide^  appropriate  to  the  end. 

§  614.  The  character  of  the  clause  equally  forbids 
any  presumption  of  an  intention  to  use  the  restrictive 
interpretation.  In  the  first  place  the  clause  is  placed 
among  the  powers  of  congress,  and  not  among  the 
limitations  iipon  those  powers.  In  the  next  place,  its 
terms  purport  to  enlarge,  and  not  to  diminish,  the 
powers  vested  in  the  government.  It  purports,  on  its 
face,  to  be  an  additional  power,  not  a  restriction  on 
those  already  granted.  If  it  does  not,  in  fact,  (as 
seems  the  true  construction,)  give  any  new  powers,  it 
affirms  the  right  to  use  all  necessary  and  proper  means 
to  carry  into  execution  the  other  powers  ;  and  thus 
makes  an  express  power,  what  would  otherwise  be 
merely  an  implied  power.  In  either  aspect,  it  is  im- 
possible to  construe  it  to  be  a  restriction.  If  it  have 
any  effect,  it  is  to  remove  the  implication  of  any  re- 
striction. If  a  restriction  had  been  intended,  it  is  im- 
possible, that  the  framers  of  the  constitution  should 
have  concealed  it  under  phraseology,  which  purports 
to  enlarge,  or  at  least  give  the  most  ample  scope  to 
the  other  powers.     There  was  every  motive  on  their 


CH.  XXIV.]    POWERS  OF  CONGRESS INCIDENTAL.     441 

part  to  give  point  and  clearness  to  every  restriction  of 
national  power  ;  for  they  well  knew,  that  the  national 
government  would  be  more  endangered  in  its  adoption 
by  its  supposed  strength,  than  by  its  weakness.  It  is 
inconceivable,  that  they  should  have  disguised  a  re- 
striction upon  its  powers  under  the  form  of  a  grant  of 
power.  They  would  have  sought  other  terms,  and 
have  imposed  the  restraint  by  negatives.  And  what 
is  equally  strong,  no  one,  in  or  out  of  the  state  con- 
ventions, at  the  time  when  the  constitution  was  put 
upon  its  deliverance  before  the  people,  ever  dreamed 
of,  or  suggested,  that  this  clause  contained  a  restriction 
of  power.  The  whole  argument  on  each  side,  of  attack 
and  of  defence,  gave  it  the  positive  form  of  an  express 
power,  and  not  of  an  express  restriction. 

^  616.  Upon  the  whole,  the  result  of  the  most 
careful  examination  of  this  clause  is,  that,  if  it  does 
not  enlarge,  it  cannot  be  construed  to  restrain,  the 
powers  of  congress,  or  to  impair  the  right  of  the  leg- 
islature to  exercise  its  best  judgment  in  the  selection 
of  measures  to  carry  into  execution  the  constitutional 
powers  of  the  national  government.  The  motive  for 
its  insertion  doubtless  was,  the  desire  to  remove  all 
possible  doubt  respecting  the  right  to  legislate  on  that 
vast  mass  of  incidental  powers,  which  must  be  involved 
in  the  constitution,  if  that  instrument  be  not  a  splendid 
pageant,  or  a  delusive  phantom  of  sovereignty.  Let 
the  end  be  legitimate  ;  let  it  be  within  the  scope  of 
the  constitution  ;  and  all  means,  which  are  appropri- 
ate, which  are  plainly  adapted  to  the  end,  and  which 
are  not  prohibited,  but  are  consistent  with  the  letter 
and  spirit  of  the  instrument,  are  constitutional. 

^  616.  It  may  be  well,  in  this  connexion,  to  men- 
tion another  sort  of  iqiplied  power,  which  has  been 

Abr.  56 


442     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

called  with  great  propriety  a  resulting  power,  arising 
from  the  aggregate  powers  of  the  national  government. 
It  will  not  be  doubted,  for  instance,  that,  if  the  United 
States  should  make  a  conquest  of  any  of  the  territories 
of  its  neighbours,  the  national  government  would  pos- 
sess sovereign  jurisdiction  over  the  conquered  territory. 
This  would,  perhaps,  rather  be  a  result  Irom  the  whole 
mass  of  the  powers  of  the  national  government,  and 
from  the  nature  of  political  society,  than  a  consequence 
or  incident  of  the  powers  specially  enumerated.     It 
may,  however,  be  deemed,  if  an   incident  to  any,  an 
incident  to  the  power  to  make  war.     Other  instances 
of  resulting  powers  will  easily  suggest  themselves. 
The  United  States  are  no  where  declared  in  the  con- 
stitution to  be  a  sovereignty  entitled  to  sue,  though 
jurisdiction  is  given  to  the  national  courts  over  contro- 
versies, "  to  which  the  United  States  shall  be  a  party." 
It  is  a  natural  incident,  resulting  from  the  sovereignty 
and  character  of  the  national  government.     So  the 
United  States,  in  their  political  capacity,  have  a  right 
to  enter  into  a  contract,  (although  it  is  not  expressly 
provided  for  by  the  constitution ;)  for  it  is  an  incident 
to  their  general  right  of  sovereignty,  so  far  as  it  is  ap- 
propriate to  any  of  the  ends  of  the  government,  and 
within   the  constitutional   range  of  its  powers.      So 
congress  possess  power  to  punish  offences  committed 
on  board  of  the  public  ships  of  war  of  the  government 
by  persons  not  in  the  military  or  naval  service  of  the 
United   States,  whether   they  are  in  port,  or  at  sea  ; 
for  the  jurisdiction  on  board  of  public  ships  is   every 
where  deemed  exclusively  to  belong  to  the  sovereign. 
^617.  And  not  only  may  implied  powers,  but  im- 
plied exemptions  from  state  authority,  exist,  although 
not  expressly  provided  for  by  law.     The  collectors  of 


CH.  XXIV.]   POWERS   OF  CONGRESS INCIDENTAL.    443 

the  revenue,  the  carriers  of  the  mail,  the  mint  estab- 
lishment, and  all  those  institutions,  which  are  public 
in  their  nature,  are  examples  in  point.  It  has  never 
been  doubted,  that  all,  who  are  employed  in  them, 
are  protected,  while  in  the  line  of  their  duty,  from 
stale  control ;  and  yet  this  protection  is  not  expressed 
in  any  act  of  congress.  It  is  incidental  to,  and  is  im- 
plied in,  the  several  acts,  by  which  those  institutions 
are  created  ;  and  is  preserved  to  them  by  the  judicial 
department,  as  a  part  of  its  functions.  A  contractor 
for  supplying  a  military  post  with  provisions  cannot 
be  restrained  from  making  purchases  within  a  state, 
or  from  transporting  provisions  to  the  place,  at  which 
troops  are  stationed.  He  cannot  be  taxed,  or  fined 
or  lawfully  obstructed,  in  so  doing.  These  incidents 
necessarily  flow  from  the  supremacy  of  the  powers  of 
the  Union,  within  their  legitimate  sphere  of  action. 

^  618.  It  would  be  almost  impracticable,  if  it  were 
not  useless,  to  enumerate  the  various  instances,  in 
which  congress,  in  the  progress  of  the  government, 
have  made  use  of  incidental  and  implied  means  to  ex- 
ecute its  powers.  They  are  almost  infinitely  varied 
in  their  ramifications  and  details.  It  is  proposed, 
however,  to  take  notice  of  the  principal  measures, 
which  have  been  contested,  as  not  within  the  scope 
of  the  powers  of  congress,  and  which  may  be  distinctly 
traced  in  the  operations  of  the  government,  and  in 
leading  party  divisions. 


444     CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

CHAPTER   XXV. 

INCIDENTAL    POWERS  NATIONAL    BANK. 

^  619.  One  of  the  earliest  and  most  important 
measures,  which  gave  rise  to  a  question  of  constitu- 
tional power,  was  the  act  chartering  the  bank  of  the 
United  States  in  1791.  That  question  has  often  since 
been  discussed  ;  and  though  the  measure  has  been 
repeatedly  sanctioned  by  congress,  by  the  executive, 
and  by  the  judiciary,  and  has  obtained  the  like  favour 
in  a  great  majority  of  the  states,  yet  it  is,  up  to  this 
very  hour,  still  debated  upon  constitutional  grounds, 
as  if  it  were  still  new,  and  untried.  It  is  impossible, 
at  this  time,  to  treat  it,  as  an  open  question,  unless 
the  constitution  is  for  ever  to  remain  an  unsettled  text, 
possessing  no  permanent  attributes,  and  incapable  of 
having  any  ascertained  sense  ;  varying  with  every 
change  of  doctrine,  and  of  party  ;  and  delivered  over 
to  interminable  doubts.  If  the  constitution  is  to  be 
only,  what  the  administration  of  the  day  may  wish  it 
to  be  ;  and  is  to  assume  any,  and  all  shapes,  which 
may  suit  the  opinions  and  theories  of  public  men,  as 
they  successively  direct  the  public  councils,  it  will  be 
difficult,  indeed,  to  ascertain,  what  its  real  value  is. 
It  cannot  possess  either  certainty,  or  uniformity,  or 
safety.  It  will  be  one  thing  to-day,  and  another  thing 
to-morrow,  and  again  another  thing  on  each  succeed- 
ing day.  The  past  will  furnish  no  guide,  and  the 
future  no  security.  It  will  be  the  reverse  of  a  law  ; 
and  entail  upon  the  country  the  curse  of  that  miserable 
servitude,  so  much  abhorred  and  denounced,  where  all 
is  vague  and  uncertain  in  the  fundamentals  of  gov- 
ernment. 


CH.  XXV.]      POWERS    OF    CONGRESS BANK.  445 

^  620.  The  reasoning,  upon  which  the  constitution- 
ality of  a  national  bank  is  denied,  has  been  already  in 
some  degree  stated  in  the  preceding  remarks.  It  turns 
upon  the  strict  interpretation  of  the  clause,  giving  the 
auxiliary  powers,  necessary  and  proper  to  execute  the 
other  enumerated  powers.  It  is  to  the  following 
effect.  The  power  to  incorporate  a  bank  is  not  among 
those  enumerated  in  the  constitution.  In  the  next 
place,  all  the  enumerated  powers  can  be  carried  into 
execution  without  a  bank.  A  bank,  therefore,  is  not 
necessary^  and  consequently  not  authorized  by  this 
clause  of  the  constitution.  It  is  urged,  that  a  bank 
will  give  great  facility,  or  convenience  to  the  collec- 
tion of  taxes.  If  this  were  true,  yet  the  constitution 
allows  only  the  means,  which  are  necessary^  and  not 
merely  those,  which  are  convenient,  for  effecting  the 
enumerated  powers.  If  such  a  latitude  of  construction 
were  allowed,  as  to  consider  convenience,  as  justifying 
the  use  of  such  means,  it  would  swallow  up  all  the 
enumerated  powers.  Therefore,  the  constitution  re- 
strains congress  to  those  means,  without  which  the 
power  would  be  nugatory. 

^  621.  Nor  can  the  convenience  be  satisfactorily 
established.  Bank-bills  may  be  a  more  convenient 
vehicle,  than  treasury  orders,  for  the  purposes  of  that 
department.  But  a  little  difference  in  the  degree  of 
convenience  cannot  constitute  the  necessity  contem- 
plated by  the  constitution.  Besides  ;  the  local  and 
state  banks  now  in  existence  are  competent,  and 
would  be  willing  to  undertake  all  the  agency  required 
for  those  very  purposes  by  the  government.  And  if 
they  are  able  and  willing,  this  establishes  clearly,  that 
there  can  be  no  necessity  for  establishing  a  national 
bank.     If  there  shall  ever  be  a  superior  conveniency 


446 


CONSTITUTION    OF    THE    U.    STATES.     [bOOK  III. 


in  a  national  bank,  it  does  not  follow,  that  there  exists 
a  power  to  establish  it,  or  that  the  business  of  the 
country  cannot  go  on  very  well  without  it.  Can  it 
be  thought,  that  the  constitution  intended,  that  for  a 
shade  or  two  of  convenience,  more  or  less,  congress 
should  be  authorized  to  break  dow^n  the  most  ancient 
and  fundamental  laws  of  the  states,  such  as  those 
against  mortmain,  the  laws  of  alienage,  the  rules  of 
descent,  the  acts  of  distribution,  the  laws  of  escheat 
and  forfeiture,  and  the  laws  of  monopoly  ?  Nothing 
but  a  necessity,  invincible  by  any  other  means,  can 
justify  such  a  prostration  of  laws,  which  constitute 
the  pillars  of  our  whole  system  of  jurisprudence.  If 
congress  have  the  power  to  create  one  corporation, 
they  may  create  all  sorts  ;  for  the  power  is  no  where 
limited ;  and  they  may  even  establish  monopolies. 
Indeed  this  very  charter  is  a  monopoly. 

§  622.  The  reasoning,  by  which  the  constitution- 
ality of  the  national  bank  has  been  sustained,  is  con- 
tained in  the  following  summary.  The  powers  con- 
fided to  the  national  government  are  unquestionably, 
so  far  as  they  exist,  sovereign  and  supreme.  It  is 
not,  and  cannot  be  disputed,  that  the  power  of  creat- 
ing a  corporation  is  one  belonging  to  sovereignty. 
But  so  are  all  other  legislative  powers  ;  for  the  origi- 
inal  power  of  giving  the  law  on  any  subject  whatever 
is  a  sovereign  power.  If  the  national  government 
cannot  create  a  corporation,  because  it  is  an  exercise 
of  sovereign  power,  neither  can  it,  for  the  same  reason, 
exercise  any  other  legislative  power.  This  considera- 
tion alone  ought  to  put  an  end  to  the  abstract  inquiry, 
whether  the  national  government  has  power  to  erect 
a  corporation,  that  is,  to  give  a  legal  or  artificial  ca- 
pacity to  one  or  more  persons,  distinct  from  the  nat- 


CH.  XXV.]    POWERS    OF    CONGRESS — BANK.  447 

ural  capacity.  For,  if  it  be  an  incident  to  sovereign- 
ty, and  it  is  not  prohibited,  it  must  belong  to  the  na- 
tional government  in  relation  to  the  objects  entrusted 
to  it.  The  true  difference  is  this  ;  where  the  authority 
of  a  government  is  general,  it  can  create  corporations 
in  all  cases  ;  where  it  is  confined  to  certain  branches 
of  legislation,  it  can  create  corporations  only  as  to 
those  cases.  It  cannot  be  denied,  that  implied  powers 
may  be  delegated,  as  well  as  express.  It  follows, 
that  a  power  to  erect  corporations  may  as  well  be 
implied,  as  any  other  thing,  if  it  be  an  instrument  or 
means  of  carrying  into  execution  any  specified  power. 
The  only  question  in  any  case  must  be,  whether  it  be 
such  an  instrument  or  means,  and  have  a  natural  re- 
lation to  any  of  the  acknowledged  objects  of  govern- 
ment. Thus,  congress  may  not  erect  a  corporation 
for  superintending  the  police  of  the  city  of  Philadel- 
phia, because  they  have  no  authority  to  regulate  the 
police  of  that  city.  But  if  they  possessed  the  author- 
ity to  regulate  the  police  of  that  city,  they  might, 
unquestionably,  create  a  corporation  for  that  purpose ; 
because  it  is  incident  to  the  sovereign  legislative 
power  to  regulate  a  thing,  to  employ  all  the  means, 
which  relate  to  its  regulation,  to  the  best  and  greatest 
advantage. 

§  623,  A  strange  fallacy  has  crept  into  the  reason- 
ing on  this  subject.  It  has  been  supposed,  that  a  cor- 
poration is  some  great,  independent  thing  ;  and  that 
the  power  to  erect  it  is  a  great,  substantive,  indepen- 
dent poAver  ;  whereas,  in  truth,  a  corporation  is  but  a 
legal  capacity,  quality,  or  means,  to  an  end  ;  and  the 
power  to  erect  it  is,  or  may  be,  an  implied  and  inci- 
dental power.  A  corporation  is  never  the  end,  for 
which  other  powers  are  exercised  ;  but  a  means,  by 


448  CONSTITUTION    OF    THE    U.    STATES.    [bOOK  III. 

which  other  objects  are  accomplished.  No  contribu- 
tions are  made  to  charity  for  the  sake  of  an  incorpor- 
ation ;  but  a  corporation  is  created  to  administer  the 
charity.  No  seminary  of  learning  is  instituted  in 
order  to  be  incorporated  ;  but  the  corporate  character 
is  conferred  to  subserve  the  purposes  of  education. 
No  city  was  ever  built  with  the  sole  object  of  being 
incorporated  ;  but  it  is  incorporated,  as  affording  the 
best  means  of  being  well  governed.  So  a  mercantile 
company  is  formed  with  a  certain  capital  for  carrying 
on  a  particular  branch  of  business.  Here,  the  business 
to  be  prosecuted  is  the  end.  The  association,  in  order 
to  form  the  requisite  capital,  is  the  primary  means. 
If  an  incorporation  is  added  to  the  association,  it  only 
gives  it  a  new  quality,  an  artificial  capacity,  by  which 
it  is  enabled  to  prosecute  the  business  with  more  con- 
venience and  safety.  In  truth,  the  power  of  creating 
a  corporation  is  never  used  for  its  own  sake  ;  but  for 
the  purpose  of  effecting  something  else.  So  that  there 
is  not  a  shadow  of  reason  to  say.  that  it  may  not  pass, 
as  an  incident  to  powers  expressly  given,  and  as  a 
mode  of  executing  them. 

^  624.  It  is  true,  that  among  the  enumerated  pow- 
ers we  do  not  find  that  of  establishing  a  bank,  or  creat- 
ing a  corporation.  But  we  do  find  there  the  great 
powers  to  lay  and  collect  taxes  ;  to  borrow  money ;  to 
regulate  commerce  ;  to  declare  and  conduct  war  ;  and 
to  raise  and  support  armies  and  navies.  Now,  if  a 
bank  be  a  fit  means  to  execute  any  or  all  of  these 
powers,  it  is  just  as  much  implied,  as  any  other  means. 
If  it  be  "  necessary  and  proper"  for  any  of  them,  how 
is  it  possible  to  deny  the  authority  to  create  it  for  such 
purposes  ?  There  is  no  more  propriety  in  giving  this 
power  in  express  terms,  than  in  giving  any  other  inci- 


CH.  XXV.]      POWERS    OF    CONGRESS BANK.  449 

dental  powers  or  means  in  express  terms.  If  it  had 
been  intended  to  grant  this  power  generally,  and  to 
make  it  a  distinct  and  independent  power,  having  no 
relation  to,  but  reaching  beyond  the  other  enumerated 
powers,  there  would  then  have  been  a  propriety  in 
giving  it  in  express  terms,  for  otherwise  it  would  not 
exist.  Thus,  it  was  proposed  in  the  convention,  to 
give  a  general  power  "  to  grant  charters  of  incorpora- 
"  tion  ;" —  to  "  grant  charters  of  incorporation  in  cases, 
"  where  the  public  good  may  require  them,  and  the 
"  authority  of  a  single  state  maybe  incompetent ;" — 
and  ^'  to  grant  letters  of  incorporation  for  canals,  &c." 
If  either  of  these  propositions  had  been  adopted,  there 
would  have  been  an  obvious  propriety  in  giving  the 
power  in  express  terms  ;  because,  as  to  the  two  for- 
mer, the  power  w^as  general  and  unlimited,  and  reach- 
ing far  beyond  any  of  the  other  enumerated  powers  ; 
and  as  to  the  latter,  it  might  be  far  more  extensive 
than  any  incident  to  the  other  enumerated  powers. 
But  the  rejection  of  these  propositions  does  not  prove, 
that  congress  in  no  case,  as  an  incident  to  the  enume- 
rated powers,  could  erect  a  corporation  ;  but  only, 
that  they  should  not  have  a  substantive,  independent 
power  to  erect  corporations  beyond  those  powers. 

§  625.  Indeed,  it  is  most  manifest,  that  it  never 
could  have  been  contemplated  by  the  convention,  that 
congress  should,  in  no  case,  possess  the  power  to  erect 
a  corporation.  What  otherwise  would  become  of  the 
territorial  governments,  all  of  which  are  corporations, 
created  by  congress  ?  There  is  no  where  an  express 
power  given  to  congress  to  erect  them.  But  under 
the  confederation,  congress  did  provide  for  their  erec- 
tion, as  a  resulting  and  implied  right  of  sovereignty, 
by  the  celebrated  ordinance  of  1787  ;  and  congress, 

Ahi\  57 


450     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

under  the  constitution,  have  ever  since,  without  ques- 
tion, and  with  the  universal  approbation  of  the  nation, 
from  time  to  time  created  territorial  governments. 
Yet  congress  derive  this  power  by  implication,  as 
necessary  and  proper  to  carry  into  effect  the  express 
power  to  regulate  the  territories  of  the  United  States. 
In  the  convention,  two  propositions  were  made,  and 
referred  to  a  committee  at  the  same  time  with  the 
propositions  already  stated  respecting  granting  of 
charters,  "  to  dispose  of  the  unappropriated  lands  of 
the  United  States,"  and  "  to  institute  temporary  gov- 
ernments for  new  states  arising  therein."  Both  of  these 
propositions  shared  the  same  fate,  as  those  respecting 
charters  of  incorporation.  But  what  would  be  thought 
of  the  argument,  built  upon  this  foundation,  that  con- 
gress did  not  possess  the  power  to  erect  territorial 
governments,  because  these  propositions  were  silently 
abandoned,  or  annulled  in  the  convention. 

^  626.  This  is  not  the  only  case,  in  which  congress 
may  erect  corporations.  Under  the  power  to  accept 
a  cession  of  territory  for  the  seat  of  government,  and 
to  exercise  exclusive  legislation  therein,  no  one  can 
doubt,  that  congress  may  erect  corporations  therein  ; 
not  only  public,  but  private  corporations.  They  have 
constantly  exercised  the  power  ;  and  it  has  never  yet 
been  breathed,  that  it  was  unconstitutional.  Yet  it 
can  be  exercised  only  as  an  incident  to  the  power  of 
general  legislation.  And  if  so,  why  may  it  not  be 
exercised,  as  an  incident  to  any  specific  power  of  leg- 
islation, if  it  be  a  means  to  attain  the  objects  of  such 
power  ? 

^  627.  That  a  national  bank  is  an  appropriate  means 
to  carry  into  effect  some  of  the  enumerated  powers  of 
the  government,  and  that  this  can  be  best  done  by 


CH.  XXV.]      POWERS    OF    CONGRESS BANK.  451 

erecting  it  into  a  corporation,  may  be  established  by 
the  most  satisfactory  reasoning.  It  has  a  relation, 
more  or  less  direct,  to  the  power  of  collecting  taxes, 
to  that  of  borrowing  money,  to  that  of  regulating  trade 
between  the  states,  and  to  those  of  raising  and  main- 
taining fleets  and  armies.  And  it  may  be  added,  that 
it  has  a  most  important  bearing  upon  the  regulation 
of  currency  between  the  states.  It  is  an  instrument, 
which  has  been  usually  applied  by  governments  in  the 
administration  of  their  fiscal  and  financial  operations. 
And  in  the  present  times  it  can  hardly  require  argu- 
ment to  prove,  that  it  is  a  convenient,  a  useful,  and 
an  essential  instrument  in  the  fiscal  operations  of  the 
government  of  the  United  States.  This  is  so  gen- 
erally admitted  by  sound  and  intelligent  statesmen, 
that  it  would  be  a  waste  of  time  to  endeavour  to 
establish  the  truth  by  an  elaborate  survey  of  the  mode, 
in  which  it  touches  the  administration  of  all  the  various 
branches  of  the  powers  of  the  government. 

^  628.  In  regard  to  the  faculties  of  the  bank,  if 
congress  could  constitutionally  create  it,  they  might 
confer  on  it  such  faculties  and  powers,  as  were  fit  to 
make  it  an  appropriate  means  for  fiscal  operations. 
They  had  a  right  to  adapt  it  in  the  best  manner  to  its 
end.  No  one  can  pretend,  that  its  having  the  faculty 
of  holding  a  capital ;  of  lending  and  dealing  in  money  ; 
of  issuing  bank  notes  ;  of  receiving  deposits  ;  and  of 
appointing  suitable  officers  to  manage  its  affairs  ;  are 
not  highly  useful  and  expedient,  and  appropriate  to 
the  purposes  of  a  bank.  They  are  just  such,  as  are 
usually  granted  to  state  banks  ;  and  just  such,  as  give 
increased  facilities  to  all  its  operations.  To  say, 
that  the  bank  might  have  gone  on  without  this  or  that 
faculty,  is  nothing.    Who,  but  congress,  shall  say,  how 


452  CONSTITUTION    Of   THE    U.    STATES.    [boOK  III. 

few,  or  how  many  faculties  it  shall  have,  if  all  are  still 
appropriate  to  it,  as  an  instrument  of  government,  and 
may  make  it  more  convenient,  and  more  useful  in  its 
operations  ?  No  man  can  say,  that  a  single  faculty  in 
any  national  charter  is  useless,  or  irrelevant,  or  strictly 
improper,  that  is  conducive  to  its  end,  as  a  national 
instrument.  Deprive  a  bank  of  its  trade  and  business, 
and  its  vital  principles  are  destroyed.  Its  form  may 
remain,  but  its  substance  is  gone.  All  the  powers 
given  to  the  bank  are  to  give^  efficacy  to  its  functions 
of  trade  and  business. 

^  629.  As  to  another  suggestion,  that  the  same  ob- 
jects might  have  been  accomplished  through  the  state 
banks,  it  is  sufficient  to  say,  that  no  trace  can  be  found 
in  the  constitution  of  any  intention  to  create  a  depend- 
ence on  the  states,  or  state  institutions,  for  the  execu- 
tion of  its  great  powers.  Its  own  means  are  adequate 
to  its  end  ;  and  on  those  means  it  was  expected  to 
rely  for  their  accomplishment.  It  would  be  utterly 
absurd  to  make  the  powers  of  the  constitution  wholly 
dependent  on  state  institutions.  But,  if  state  banks 
might  be  employed,  as  congress  have  a  choice  of 
means,  they  have  a  right  to  choose  a  national  bank,  in 
preference  to  state  banks,  for  the  financial  operations 
of  the  government.  Proof,  that  they  might  use  one 
means,  is  no  proof,  that  they  cannot  constitutionally 
use  another  means. 

^  630.  After  all,  the  subject  has  been  settled  re- 
peatedly by  every  department  of  the  government,  leg- 
islative, executive,  and  judicial.  The  states  have  ac- 
quiesced ;  and  a  majority  have  constantly  sustained 
the  power.  If  it  is  not  now  settled,  it  never  can  be. 
If  it  is  settled,  it  would  be  too  much  to  expect  a  re- 
argument,  whenever  any  person  may  choose  to  ques- 
tion it. 


CH.  XXVI.]    POWERS  OF  CONGRESS ROADS,    &C.       453 

CHAPTER  XXVI. 

POWERS      OF     CONGRESS  INTERNAL     IMPROVEMENTS. 

^  631.  Another  question,  which  has  for  a  long 
time  agitated  the  public  councils  of  the  nation,  is,  as 
to  the  authority  of  congress  to  make  roads,  canals, 
and  other  internal  improvements. 

^  632.  So  far,  as  regards  the  right  to  appropriate 
money  to  internal  improvements  generally,  the  subject 
has  already  passed  under  review  in  considering  the 
power  to  lay  and  collect  taxes.  The  doctrine  there 
contended  for,  which  has  been  in  a  great  measure 
borne  out  by  the  actual  practice  of  the  government, 
is,  that  congress  may  appropriate  money,  not  only  to 
clear  obstructions  to  navigable  rivers  ;  to  improve 
harbours  ;  to  build  breakwaters  ;  to  assist  navigation ; 
to  erect  forts,  light-houses,  and  piers  ;  and  to  other 
purposes  allied  to  some  of  the  enumerated  powers ; 
but  may  also  appropriate  it  in  aid  of  canals,  roads, 
and  other  institutions  of  a  similar  nature,  existing 
under  state  authority.  The  only  limitations  upon  the 
power  are  those  prescribed  by  the  terms  of  the  con- 
stitution, that  the  objects  shall  be  for  the  common 
defence,  or  the  general  welfare  of  the  Union.  The 
true  test  is,  whether  the  object  be  of  a  local  character, 
and  local  use  ;  or,  whether  it  be  of  general  benefit  to 
the  states.  If  it  be  purely  local,  congress  cannot 
constitutionally  appropriate  money  for  the  object. 
But,  if  the  benefit  be  general,  it  matters  not,  whether 
in  point  of  locality  it  be  in  one  state,  or  several  ; 
whether  it  be  of  large,  or  of  small  extent.  Its  nature 
and  character  determine  the  right,  and  congress  may 


454  CONSTITUTION    OF    THE    U.    STATES.     [BOOK  III. 

appropriate  money  in  aid  of  it ;  for  it  is  then  in  a  just 
sense  for  the  general  welfare. 

§  633.  But  it  has  been  contended,  that  the  consti- 
tution is  not  confined  to  mere  appropriations  of  money ; 
but  authorizes  congress  directly  to  undertake,  and  carry 
on  a  system  of  internal  improvements  for  the  general 
welfare,  wherever  such  improvements  fall  within  the 
scope  of  any  of  the  enumerated  powers.  Congress 
may  not,  indeed,  engage  in  such  undertakings  merely, 
because  they  are  internal  improvements  for  the  general 
welfare,  unless  they  fall  within  the  scope  of  the  enume- 
rated powers.  The  distinction  between  this  power, 
and  the  power  of  appropriation  is,  that  in  the  latter, 
congress  may  appropriate  to  any  purpose,  which  is  for 
the  common  defence  or  general  welfare  ;  but  in  the 
former,  they  can  engage  in  such  undertakings  only, 
as  are  means,  or  incidents  to  its  enumerated  powers. 
Congress  may,  therefore,  authorize  the  making  of  a 
canal,  as  incident  to  the  power  to  regulate  commerce, 
where  such  canal  may  facilitate  the  intercourse  between 
state  and  state.  They  may  authorize  light-houses, 
piers,  buoys,  and  beacons  to  be  built  for  the  purposes 
of  navigation.  They  may  authorize  the  purchase  and 
building  of  custom-houses,  and  revenue  cutters,  and 
public  ware-houses,  as  incidents  to  the  power  to  lay 
and  collect  taxes.  They  may  purchase  places  for 
public  uses ;  and  erect  forts,  arsenals,  dock-yards, 
navy-yards,  and  magazines,  as  incidents  to  the  power 
to  make  war. 

^  634.  For  the  same  reason  congress  may  author- 
ize the  laying  out  and  making  of  a  military  road,  and 
acquire  a  right  over  the  soil  for  such  purposes  ;  and  as 
incident  thereto  they  will  have  a  power  to  keep  the  road 
in  repair,  and  prevent  all  obstructions  thereto.     But 


CH.  XXVI.]    POWERS  OF  CONGRESS  ROADS,  &C.      455 

in  these,  and  the  like  cases,  the  general  jurisdiction  of 
the  state  over  the  soil,  subject  only  to  the  rights  of  the 
United  States,  is  not  excluded.  As,  for  example,  in 
case  of  a  military  road  ;  although  a  state  cannot  pre- 
vent repairs  on  the  part  of  the  United  States,  or  au- 
thorize any  obstructions  of  the  road,  its  general  juris- 
diction remains  untouched.  It  may  punish  all  crimes 
committed  on  the  road  ;  and  it  retains  in  other  respects 
its  territorial  sovereignty  over  it.  The  right  of  soil 
may  still  remain  in  the  state,  or  in  individuals,  and  the 
right  to  the  easement  only  in  the  national  government. 
There  is  a  great  distinction  between  the  exercise  of  a 
power,  excluding  altogether  state  jurisdiction,  and  the 
exercise  of  a  power,  which  leaves  the  state  jurisdiction 
generally  in  force,  and  yet  includes,  on  the  part  of  the 
national  government,  a  power  to  preserve,  what  it  has 
created. 

§  635.  In  all  these,  and  other  cases,  in  which  the 
power  of  congress  is  asserted,  it  is  so  upon  the  general 
ground  of  its  being  an  incidental  power ;  and  the  course 
of  reasoning,  by  which  it  is  supported,  is  precisely  the 
same,  as  that  adopted  in  relation  to  other  cases  already 
considered.  It  is,  for  instance,  admitted,  that  congress 
cannot  authorize  the  making  of  a  canal,  except  for 
some  purpose  of  commerce  among  the  states,  or  for 
some  other  purpose  belonging  to  the  Union  ;  and  it 
cannot  make  a  military  road,  unless  it  be  necessary 
and  proper  for  purposes  of  war.  To  go  over  the 
reasoning  at  large  would,  therefore,  be  little  more, 
than  a  repetition  of  what  has  been  already  fully  ex- 
pounded. The  Journal  of  the  Convention  is  not  sup- 
posed to  furnish  any  additional  lights  on  the  subject, 
beyond  what  have  been  already  stated. 

^  636,  The  resistance   to  this  extended   reach  of 


456     CONSTITUTION  OF  THE  U.  STATES.  [BOOK  III. 

the  national  powers  turns  also  upon  the  same  general 
reasoning,  by  which  a  strict  construction  of  the  con- 
stitution has  been  constantly  maintained.  It  is  said, 
that  such  a  power  is  not  among  those  enumerated  in 
the  constitution  ;  nor  is  it  implied,  as  a  means  of  ex- 
ecuting any  of  them.  The  power  to  regulate  com- 
merce cannot  include  a  power  to  construct  roads  and 
canals,  and  improve  the  navigation  of  water-courses 
in  order  to  faciliate,  promote,  and  secure  such  com- 
merce, without  a  latitude  of  construction  departing 
from  the  ordinary  import  of  the  terms,  and  incompati- 
ble with  the  nature  of  the  constitution.  The  liberal 
interpretation  has  been  very  uniformly  asserted  by 
congress  ;  the  strict  interpretation  has  not  uniformly, 
but  has  upon  several  important  occasions  been  insisted 
upon  by  the  executive.  In  the  present  state  of  the 
controversy,  the  duty  of  forbearance  seems  inculcated 
upon  the  commentator  ;  and  the  reader  must  decide 
for  himself  upon  his  own  views  of  the  subject. 

^  637.  Another  question  has  been  made,  how  far 
congress  could  make  a  law  giving  to  the  United  States 
a  preference  and  priority  of  payment  of  their  debts,  in 
case  of  the  death,  or  insolvency,  or  bankruptcy  of  their 
debtors,  out  of  their  estates.  It  has  been  settled,  upon 
deliberate  argument,  that  congress  possess  such  a 
constitutional  power.  It  is  a  necessary  and  proper 
power  to  carry  into  effect  the  other  powers  of  the  gov- 
ernment. The  government  is  to  pay  the  debts  of  the 
Union  ;  and  must  be  authorized  to  use  the  means, 
which  appear  to  itself  most  eligible  to  effect  that  object. 
It  may  purchase,  and  remit  bills  for  this  object ;  and 
it  may  take  all  those  precautions,  and  make  all  those 
regulations,  which  will  render  the  transmission  safe. 
It  may,  in  like  manner,  pass  all  laws  to  render  effectual 


CH.  XXVI.]    POWERS  OF  CONGRESS ROADS,  &C.      457 

the  collection  of  its  debts.  It  is  no  objection  to  this 
right  of  priority,  that  it  will  interfere  with  the  rights 
of  the  state  sovereignties  respecting  the  dignity  of 
debts,  and  will  defeat  the  measures,  which  they  have 
a  right  to  adopt  to  secure  themselves  against  delin- 
quencies on  the  part  of  their  own  revenue  or  other 
officers.  This  objection,  if  of  any  avail,  is  an  objection 
to  the  powers  given  by  the  constitution.  The  mischief 
suggested,  so  far  as  it  can  really  happen,  is  the  neces- 
sary consequence  of  the  supremacy  of  the  laws  of  the 
United  States  on  all  subjects,  to  which  the  legislative 
power  of  congress  extends. 

§  638.  It  is  under  the  same  implied  authority,  that 
the  United  States  have  any  right  even  to  sue  in  their 
own  courts  ;  for  an  express  power  is  no  where  given 
in  the  constitution,  though  it  is  clearly  implied  in  that 
part  respecting  the  judicial  power.  And  congress  may 
not  only  authorize  suits  to  be  brought  in  the  name  of 
the  United  States,  but  in  the  name  of  any  artificial 
person,  (such  as  the  Postmaster-General,)  or  natural 
person,  for  their  benefit.  Indeed,  all  the  usual  inci- 
dents appertaining  to  a  personal  sovereign,  in  relation 
to  contracts,  and  suing,  and  enforcing  rights,  so  far  as 
they  are  within  the  scope  of  the  powers  of  the  gov- 
ernment, belong  to  the  United  States,  as  they  do  to 
other  sovereigns.  The  right  of  making  contracts  and 
instituting  suits  is  an  incident  to  the  general  right  of 
sovereignty  ;  and  the  United  States,  being  a  body 
politic,  may,  within  the  sphere  of  the  constitutional 
powers  confided  to  it,  and  through  the  instrumentality 
of  the  proper  department,  to  which  those  powers  are 
confided,  enter  into  contracts  not  prohibited  by  law, 
and  appropriate  to  the  just  exercise  of  those  powers  ; 

Abr.  58 


458    CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

and  enforce  the  observance  of  them  by  suits  and  judi- 
cial process. 

^  639.  There  are  almost  innumerablp  cases,  in 
which  the  auxiliary  and  implied  powers  belonging  to 
congress  have  been  put  into  operation.  But  the  ob- 
ject of  these  Commentaries  is,  rather  to  take  notice  of 
those,  which  have  been  the  subject  of  animadversion, 
than  of  those,  which  have  hitherto  escaped  reproof,  or 
have  been  silently  approved. 


CH.  XXVII.]  POWERS  OF  CONGRESS LOUISIANA.       459 

CHAPTER   XXVII. 

POWERS    OF    CONGRESS  PURCHASE    OF    FOREIGN 

TERRITORY EMBARGOES. 

^  640.  But  the  most  remarkable  powers,  which 
have  been  exercised  by  the  government,  as  auxiliary 
and  implied  powers,  and  which,  if  any,  go  to  the  ut- 
most verge  of  liberal  construction,  are  the  laying  of  an 
unlimited  embargo  in  1807,  and  the  purchase  of  Lou- 
isiana in  1803,  and  its  subsequent  admission  into  the 
Union,  as  a  state.  These  measures  were  brought  for- 
ward, and  supported,  and  carried,  by  the  known  and 
avowed  friends  of  a  strict  construction  of  the  constitu- 
tion ;  and  they  were  justified  at  the  time,  and  can  be 
now  justified,  only  upon  the  doctrines  of  those,  who 
support  a  liberal  construction  of  the  constitution. 
The  subject  has  been  already  hinted  at ;  but  it  de- 
serves a  more  deliberate  review. 

^  641.  In  regard  to  the  acquisition  of  Louisiana  :  — 
The  treaty  of  1 803  contains  a  cession  of  the  whole  of 
that  vast  territory  by  France  to  the  United  States,  for 
a  sum  exceeding  eleven  millions  of  dollars.  There  is 
a  stipulation  in  the  treaty  on  the  part  of  the  United 
States,  that  the  inhabitants  of  the  ceded  territory  shall 
be  incorporated  into  the  Union,  and  admitted,  as  soon 
as  possible,  according  to  the  principles  of  the  federal 
constitution,  to  the  enjoyment  of  all  the  rights,  advan- 
tages, and  immunities  of  citizens  of  the  United  States. 

^  642.  It  is  obvious,  that  the  treaty  embraced  sev- 
eral very  important  questions,  each  of  them  upon  the 
grounds  of  a  strict  construction  full  of  difficulty  and 
delicacy.     In  thd  first  place,  had  the  United  States  a 


460  CONSTITUTION    OF    THE    U.    STATES.    [bOOK  III. 

constitutional  authority  to  accept  the  cession  and  pay 
for  it  ?  In  the  next  place,  if  they  had,  was  the  stipu- 
lation for  the  admission  of  the  inhabitants  into  the 
Union,  as  a  state,  constitutional,  or  within  the  power 
of  congress  to  give  it  effect  ? 

^  643.  There  is  no  pretence,  that  the  purchase,  or 
cession  of  any  foreign  territory  is  within  any  of  the 
powers  expressly  enumerated  in  the  constitution.  It 
is  no  where  in  that  instrument  said,  that  congress,  or 
any  other  department  of  the  national  government,  shall 
have  a  right  to  purchase,  or  accept  of  any  cession  of 
foreign  territory.  The  power  itself  (it  has  been  said) 
could  scarcely  have  been  in  the  contemplation  of  the 
framers  of  it.  It  is,  in  its  own  nature,  as  dangerous  to 
liberty,  as  susceptible  of  abuse  in  its  actual  application, 
and  as  likely  as  any,  which  could  be  imagined,  to  lead 
to  a  dissolution  of  the  Union.  If  congress  have  the 
power,  it  may  unite  any  foreign  territory  whatsoever 
to  our  own,  however  distant,  however  populous,  and 
however  powerful.  Under  the  form  of  a  cession,  we 
may  become  united  to  a  more  powerful  neighbour  or 
rival ;  and  be  involved  in  European,  or  other  foreign 
interests,  and  contests,  to  an  interminable  extent. 
And  if  there  may  be  a  stipulation  for  the  admission  ot 
foreign  states  into  the  Union,  the  whole  balance  of 
the  constitution  may  be  destroyed,  and  the  old  states 
sunk  into  utter  insignificance.  It  is  incredible,  that 
it  should  have  been  contemplated,  that  any  such  over- 
whelming authority  should  be  confided  to  the  national 
government  w  ith  the  consent  of  the  people  of  the  old 
states.  If  it  exists  at  all,  it  is  unforeseen,  and  the 
result  of  a  sovereignty,  intended  to  be  limited,  and 
yet  not  sufficiently  guarded.  The  very  case  of  the 
cession  of  Louisiana  is  a  striking  illustration  of  the 


CH.  XXVII.]   POWERS  OF  CONGRESS LOUISIANA.       461 

doctrine.  It  admits,  by  consequence,  into  the  Union 
an  immense  territory,  equal  to,  if  not  greater,  than 
that  of  all  the  United  States  under  the  peace  of  1783. 
In  the  natural  progress  of  events,  it  must,  w^ithin  a 
short  period,  change  the  whole  balance  of  power  in 
the  Union,  and  transfer  to  the  West  all  the  important 
attributes  of  the  sovereignty  of  the  whole.  If,  as  is 
well  known,  one  of  the  strong  objections  urged  against 
the  constitution  was,  that  the  original  territory  of  the 
United  States  was  too  large  for  a  national  government ; 
it  is  inconceivable,  that  it  could  have  been  within  the 
intention  of  the  people,  that  any  additions  of  foreign 
territory  should  be  made,  which  should  thus  double 
every  danger  from  this  source.  The  treaty-making 
power  must  be  construed,  as  confined  to  objects  within 
the  scope  of  the  constitution.  And,  although  congress 
have  authority  to  admit  new  states  into  the  firm,  yet 
it  is  demonstrable,  that  this  clause  had  sole  reference 
to  the  territory  then  belonging  to  the  United  States  ; 
and  was  designed  for  the  adnjission  of  the  states,  which, 
under  the  ordinance  of  1787,  were  contemplated  to  be 
formed  within  its  old  boundaries.  In  regard  to  the 
appropriation  of  money  for  the  purposes  of  the  cession 
the  case  is  still  stronger.  If  no  appropriation  of  money 
can  be  made,  except  for  cases  within  the  enumerated 
powers,  (and  this  clearly  is  not  one,)  how  can  the 
enormous  sum  of  eleven  millions  be  justified  for  this 
object  ?  If  it  be  said,  that  it  will  be  "  for  the  com- 
mon defence,  and  general  welfare  "  to  purchase  the 
territory,  how  is  this  reconcilable  with  the  strict  con- 
struction of  the  constitution  ?  If  congress  can  appro- 
priate money  for  one  object,  because  it  is  deemed  for 
the  common  defence  and  general  welfare,  why  may 
they  not  appropriate  it  for  all  objects  of  the  same  sort  ? 


462     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

If  the  territory  can  be  purchased,  it  must  be  governed ; 
and  a  territorial  government  must  be  created.  But 
where  can  congress  find  authority  in  the  constitution 
to  erect  a  territorial  government,  since  it  does  not 
possess  the  power  to  erect  corporations  ? 

^  644.  Such  were  the  objections,  which  were  urged 
against  the  cession,  and  the  appropriations  made  to 
carry  the  treaty  into  effect.  The  friends  of  the  mea- 
sure were  driven  to  the  adoption  of  the  doctrine,  that 
the  right  to  acquire  territory  was  incident  to  national 
sovereignty  ;  that  it  was  a  resulting  power,  growing 
necessarily  out  of  the  aggregate  powers  confided  by 
the  federal  constitution  ;  that  the  appropriation  might 
justly  be  vindicated  upon  this  ground,  and  also  upon 
the  ground,  that  it  was  for  the  common  defence  and 
general  welfare.  In  short,  there  is  no  possibility  of 
defending  the  constitutionality  of  this  measure,  but 
upon  the  principles  of  the  liberal  construction,  which 
has  been,  upon  other  occasions,  so  earnestly  resisted. 

§  645.  The  other  instance  of  an  extraordinary  ap- 
pUcation  of  the  implied  powers  of  the  government, 
above  alluded  to,  is  the  embargo  laid  in  the  year  1807, 
by  the  special  recommendation  of  President  Jefferson. 
It  was  avowedly  recommended,  as  a  measure  of  safety 
for  our  vessels,  our  seamen,  and  our  merchandise,  from 
the  then  threatening  dangers  from  the  belligerents  of 
Europe ;  and  it  was  explicitly  stated  "  to  be  a  measure 
of  precaution  called  for  by  the  occasion;"  and  "neither 
hostile  in  its  character,  nor  as  justifying,  or  inciting,  or 
leading  to  hostility  with  any  nation  whatever."  It  was 
in  no  sense,  then,  a  war  measure.  If  it  could  be 
classed  at  all,  as  flowing  from,  or  as  an  incident  to,  any 
of  the  enumerated  powers,  it  was  to  that  of  regulating 
commerce.     In  its  terms,  the  act  provided,  that  an  em- 


CH.  XXVII.]    POWERS  OF  CONGRESS-EMBARGOES.     463 

bargo  be,  and  hereby  is,  laid  on  all  ships  and  vessels  in 
the  ports,  or  within  the  limits  or  jurisdiction,  of  the 
United  States,  &:c.  bound  to  any  foreign  port  or  place. 
It  was  in  its  terms  unlimited  in  duration ;  and  could  be 
removed  only  by  a  subsequent  act  of  congress,  having 
the  assent  of  all  the  constitutional  branches  of  the  legis- 
lature. 

§  646.  No  one  can  reasonably  doubt,  that  the  lay- 
ing of  an  embargo,  suspending  commerce  for  a  limited 
period,  is  within  the  scope  of  the  constitution.  But  the 
question  of  difficulty  was,  whether  congress,  under  the 
power  to  regulate  commerce  with  foreign  nations,  could 
constitutionally  suspend  and  interdict  it  wholly  for  an 
unlimited  period,  that  is,  by  a  permanent  act,  having  no 
limitation  as  to  duration,  either  of  the  act,  or  of  the  em- 
bargo. It  was  most  seriously  controverted,  and  its 
constitutionality  denied  in  the  Eastern  states  of  the 
Union,  during  its  existence.  An  appeal  was  made  to 
the  judiciary  upon  the  question;  and  it  having  been 
settled  to  be  constitutional  by  that  department  of  the 
government,  the  decision  was  acquiesced  in,  though  the 
measure  bore  with  almost  unexampled  severity  upon 
the  Eastern  states;  and  its  ruinous  effects  can  still  be 
traced  along  their  extensive  seaboard.  The  argument 
was,  that  the  power  to  regulate  did  not  include  the 
power  to  annihilate  commerce,  by  interdicting  it  perma- 
nently and  entirely  with  foreign  nations.  The  decision 
was,  that  the  power  of  congress  was  sovereign,  in  relation 
to  commercial  intercourse,  qualified  by  the  limitations 
and  restrictions  contained  in  the  constitution  itself. 
Non-intercourse  and  Embargo  laws  are  within  the 
range  of  legislative  discretion  ;  and  if  congress  have  the 
power,  for  purposes  of  safet}'^,  of  preparation,  or  of  coun- 
teraction, to  suspend  commercial  intercourse  with  for- 


464         CONSTITUTION  OF  THE  U.  STATES.        [BOOK  HI. 

eign  nations,  they  are  not  limited,  as  to  the  duration, 
any  more,  than  as  to  the  manner  and  extent  of  the 
measure. 

§  647.  That  this  measure  went  to  the  utmost  verge 
of  constitutional  power,  and  especially  of  implied  power, 
has  never  been  denied.  That  it  could  not  be  justified 
by  any,  but  the  most  liberal  construction  of  the  consti- 
tution, is  equally  undeniable.  It  was  the  favourite  mea- 
sure of  those,  who  were  generally  the  advocates  of  the 
strictest  construction.  It  was  sustained  by  the  people 
from  a  belief,  that  it  was  promotive  of  the  interests,  and 
important  to  the  safety  of  the  Union. 

^  648.  There  remain  one  or  two  other  measures  of 
a  political  nature,  whose  constitutionality  has  been  de- 
nied ;  but  which,  being  of  a  transient  character,  have 
left  no  permanent  traces  in  the  constitutional  jurispru- 
dence of  the  country.  Reference  is  here  made  to  the 
Alien  and  Sedition  laws,  passed  in  1798,  both  of  which 
were  limited  to  a  short  duration,  and  expired  by  their 
own  hmitation. 

§  649.  The  constitutionality  of  both  the  acts  was 
assailed  with  great  earnestness  and  ability  at  the  time  ; 
and  was  defended  with  equal  masculine  vigour.  The 
ground  of  the  advocates,  in  favour  of  these  laws,  was, 
that  they  resulted  from  the  right  and  duty  in  the  gov- 
ernment of  self-preservation,  and  the  like  duty  and 
protection  of  its  functionaries  in  the  proper  discharge 
of  their  official  duties.  They  were  impugned,  as  not 
conformable  to  the  letter,  or  spirit  of  the  constitution ; 
and  as  inconsistent  in  their  principles  with  the  rights  of 
citizens,  and  the  liberty  of  the  press.  The  AHen  act 
was  denounced,  as  exercising  a  power  not  delegated 
by  the  constitution ;  as  uniting  legislative  and  judicial 
functions,  with  that  of  the  executive ;  and  by  this  Union 


CH.  XXVII.]     POWERS  OF  CONGRESS-ALIEN  ACT.       465 

as  subverting  the  general  principles  of  free  govern- 
ment, and  the  particular  organization  and  positive  pro- 
visions of  the  constitution.  It  was  added,  that  the  Se- 
dition act  was  open  to  the  same  objection,  and  was  ex- 
pressly forbidden  by  one  of  the  amendments  of  the 
constitution,  on  which  there  will  be  occasion  hereafter 
to  comment.  At  present  it  does  not  seem  necessary  to 
present  more  than  this  general  outline,  as  the  measures 
are  not  likely  to  be  renewed ;  and  as  the  doctrines,  on 
which  they  are  maintained,  and  denounced,  are  not  ma- 
terially different  jfrom  those,  which  have  been  already 
considered. 


Abr.  59 


466  CONSTITUTION  OF  THE  F.  STATES.    [bOOK  III. 


CHAPTER  XXVIII. 

POWER  OF  CONGRESS  TO  PUNISH  TREASON. 

§  650.  And  here,  in  the  order  of  the  constitution, 
terminates  the  section,  which  enumerates  the  powers 
of  Congress.  There  are,  however,  other  clauses  de- 
tached from  their  proper  connexion,  which  embrace 
other  powers  delegated  to  congress  ;  and  which  for  no 
apparent  reason  have  been  so  detached.  As  it  will  be 
more  convenient  to  bring  the  whole  in  review  at  once, 
it  is  proposed  (though  it  is  a  deviation  from  the  general 
method  of  this  work)  to  submit  them  in  this  place  to 
the  consideration  of  the  reader. 

^651.  The  third  section  of  the  fourth  article  gives  a 
constitutional  definition  of  the  crime  of  treason,  (which 
will  be  reserved  for  a  separate  examination,)  and  then 
provides :  "  The  congress  shall  have  power  to  declare 
"  the  punishment  of  treason ;  but  no  attainder  of  trea- 
"  son  shall  work  corruption  of  blood,  or  forfeiture,  ex- 
"  cept  during  the  Hfe  of  the  person  attainted." 

^  652.  The  propriety  of  investing  the  national  gov- 
ernment with  authority  to  punish  the  crime  of  treason 
against  the  United  States  could  never  become  a  ques- 
tion with  any  persons,  who  deemed  the  national  govern- 
ment worthy  of  creation,  or  preservation.  If  the  power 
had  not  been  expressly  granted,  it  must  have  been  im- 
plied, unless  all  the  powers  of  the  national  government 
might  be  put  at  defiance,  and  prostrated  with  impunity. 
Two  motives,  probably,  concurred  in  introducing  it,  as 
an  express  power.  One  was,  not  to  leave  it  open  to  im- 
plication, whether  treason  was  to  be  exclusively  punish- 


CH.  XXVIII.]    POWERS  OF  CONGRESS TREASON.    467 

able  with  death  according  to  the  known  rule  of  the 
common  law,  and  with  the  barbarous  accompaniments 
pointed  out  by  it ;  but  to  confide  the  punishment  to  the 
discretion  of  congress.  The  other  was,  to  impose  some 
limitation  upon  the  nature  and  extent  of  the  punish- 
ment, so  that  it  should  not  work  corruption  of  blood  or 
forfeiture  beyond  the  life  of  the  offender. 

§  653.  The  punishment  of  high  treason  by  the  com- 
mon law,  as  stated  by  Mr.  Justice  Blackstone,  is  as  fol- 
lows: 1.  That  the  offender  be  drawn  to  the  gallows, 
and  not  be  carried  or  walk,  though  usually  (by  conniv- 
ance at  length  ripened  into  law)  a  sledge  or  hurdle  is 
allowed,  to  preserve  the  offender  from  the  extreme 
torment  of  being  dragged  on  the  ground  or  pavement. 

2.  That  he  be  hanged  by  the  neck,  and  cut  down  alive. 

3.  That  his  entrails  be  taken  out  and  burned,  while  he 
is  yet  alive.  4.  That  his  head  be  cut  off.  5.  That 
his  body  be  divided  into  four  parts.  6.  That  his  head 
and  quarters  be  at  the  king's  disposal.  These  refine- 
ments in  cruelty  (which  if  now  practised  would  be  dis- 
graceful to  the  character  of  the  age)  were,  in  former 
times,  Hterally  and  studiously  executed ;  and  indicate 
at  once  a  savage  and  ferocious  spirit,  and  a  degrading 
subserviency  to  royal  resentments,  real  or  supposed. 
It  was  wise  to  place  the  punishment  solely  in  the  dis- 
cretion of  congress  ;  and  the  punishment  has  been  since 
declared  to  be  simply  death  by  hanging  ;  thus  inflicting 
death  in  a  manner  becoming  the  humanity  of  a  civilized 
society. 

^  654.  It  is  well  known,  that  corruption  of  blood, 
and  forfeiture  of  the  estate  of  the  offender  followed,  as 
a  necessary  consequence  at  the  common  law,  upon 
every  attainder  of  treason.  By  corruption  of  blood  all 
inheritable  qualities  are  destroyed ;    so,  that  an  attaint- 


468  CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 

ed  person  can  neither  inherit  lands,  nor  other  heredita- 
ments from  his  ancestors,  nor  retain  those,  he  is  already 
in  possession  of,  nor  transmit  them  to  any  heir.  And  this 
destruction  of  all  inheritable  qualities  is  so  complete, 
that  it  obstructs  all  descents  to  his  posterity,  whenever 
they  are  obliged  to  derive  a  title  through  him  to  any 
estate  of  a  remoter  ancestor.  So,  that  if  a  father  com- 
mits treason,  and  is  attainted,  and  suffers  death,  and 
then  the  grandfather  dies,  his  grandson  cannot  inherit 
any  estate  from  his  grandfather ;  for  he  must  claim 
through  his  father,  who  can  convey  to  him  no  inher- 
itable blood.  Thus  the  innocent  are  made  the  victims 
of  a  guilt,  in  which  they  did  not,  and  perhaps  could  not, 
participate  ;  and  the  sin  is  visited  upon  remote  genera- 
tions. In  addition  to  this  most  grievous  disability,-  the 
person  attainted  forfeits,  by  the  common  law,  all  his 
lands,  and  tenements,  and  rights  of  entry,  and  rights  of 
profits  in  lands  or  tenements,  which  he  possesses. 
And  this  forfeiture  relates  back  to  the  time  of  the  trea- 
son committed,  so  as  to  avoid  all  intermediate  sales  and 
incumbrances  ;  and  he  also  forfeits  all  his  goods  and 
chattels  from  the  time  of  his  conviction. 

§  655.  The  reason  commonly  assigned  for  these  se- 
vere punishments,  beyond  the  mere  forfeiture  of  the 
life  of  the  party  attainted,  are  these :  By  committing 
treason  the  party  has  broken  his  original  bond  of  alle- 
giance, and  forfeited  his  social  rights.  Among  these 
social  rights,  that  of  transmitting  property  to  others  is 
deemed  one  of  the  chief  and  most  valuable.  More- 
over, such  forfeitures,  whereby  the  posterity  of  the 
offender  must  suffer,  as  well  as  himself,  will  help  to  re- 
strain a  man,  not  only  by  the  sense  of  his  duty,  and 
dread  of  personal  punishment,  but  also  by  his  passions 
and  natural  affections ;  and  will  interest  every  depend- 


CH.  XXVIII.]   POWERS  OF  CONGRESS TREASON.     469 

ent  and  relation,  he  has,  to  keep  him  from  offending. 
But  this  view  of  the  subject  is  wholly  unsatisfactory. 
It  looks  only  to  the  offender  himself,  and  is  regardless 
of  his  innocent  posterity.  It  really  operates,  as  a  post- 
humous punishment  upon  them  ;  and  compels  them  to 
bear,  not  only  the  disgrace  naturally  attendant  upon 
such  flagitious  crimes ;  but  takes  from  them  the  com- 
mon rights  and  privileges  enjoyed  by  all  other  citizens, 
where  they  are  wholly  innocent,  and  however  remote 
they  may  be  in  the  lineage  from  the  first  offender.  It 
surely  is  enough  for  society  to  take  the  life  of  the 
offender,  as  a  just  punishment  of  his  crime,  without 
taking  from  his  offspring  and  relatives  that  property, 
which  may  be  the  only  means  of  saving  them  from  pov- 
erty and  ruin.  It  is  bad  policy  too  ;  for  it  cuts  off  all 
the  attachments,  which  these  unfortunate  victims  might 
otherwise  feel  for  their  own  government,  and  prepares 
them  to  engage  in  any  other  service,  by  which  their 
supposed  injuries  may  be  redressed,  or  their  hereditary 
hatred  gratified.  Upon  these  and  similar  grounds,  it 
may  be  presumed,  that  the  clause  was  first  introduced 
into  the  original  draft  of  the  constitution ;  and,  after 
some  amendments,  it  was  adopted  without  any  appa- 
rent resistance. 


i 


470  CONSTITUTION    OF  THE  U.   STATES.     [bOOK  III. 


CHAPTER  XXIX. 

POWER    OF    CONGRESS    AS    TO    PROOF    OF  STATE 
RECORDS  AND    PROCEEDINGS. 

^  656.  The  first  section  of  the  fourth  article  de- 
clares :  "  Full  faith  and  credit  shall  be  given  in  each 
"  state  to  the  public  acts,  records,  and  judicial  proceed- 
"  ings  of  every  other  state.  And  the  congress  may  by 
"general  lavi^s  prescribe  the  manner,  in  which  such 
"  acts,  records,  and  proceedings  shall  be  proved,  and  the 
'' effect  thereof r 

^  657.  It  is  well  known,  that  the  laws  and  acts  of 
foreign  nations  are  not  judicially  taken  notice  of  in  any 
other  nation  ;  and  that  they  must  be  proved,  like  any 
other  facts,  whenever  they  come  into  operation  or  ex- 
amination in  any  forensic  controversy.  The  nature 
and  mode  of  the  proof  depend  upon  the  municipal 
law  of  the  country,  where  the  suit  is  depending ;  and 
there  are  known  to  be  great  diversities  in  the  practice 
of  different  nations  on  this  subject.  Even  in  England 
and  America  the  subject,  notwithstanding  the  numerous 
judicial  decisions,  which  have  from  time  to  time  been 
made,  is  not  without  its  difficulties  and  embarrass- 
ments. 

^  658.  Independent  of  the  question  as  to  proof,  there 
is  another  question,  as  to  the  effect,  which  is  to  be  giv- 
en to  foreign  judgments,  when  duly  authenticated,  in 
the  tribunals  of  other  nations,  either  as  matter  to  main- 
tain a  suit,  or  to  found  a  defence  to  a  suit.  Upon  this 
subject,  also,  different  nations  are  not  entirely  agreed 
in  opinion  or  practice.     Most,  if  not  all  of  them,  profess 


CH.  XXIX.]       POWERS  OF  CONGRESS RECORDS.       471 

to  give  some  effect  to  such  judgments  ;  but  many  ex- 
ceptions are  allowed,  which  either  demolish  the  whole 
efficiency  of  the  judgment,  as  such,  or  leave  it  open  to 
collateral  proofs,  which  in  a  great  measure  impair  its 
validity.  To  treat  suitably  of  this  subject  would  re- 
quire a  large  dissertation,  and  appropriately  belongs  to 
another  branch  of  public  law. 

§  659.  The  general  rule  of  the  common  law,  recog- 
nised both  in  England  and  America,  is,  that  foreign  judg- 
ments are  prima  facie  evidence  of  the  right  and  matter, 
which  they  purport  to  decide.  At  least,  this  may  be 
asserted  to  be  in  England  the  preponderating  weight  of 
opinion ;  and  in  America  it  has  been  held,  upon  many  oc- 
casions, though  its  correctness  has  been  recently  ques- 
tioned, upon  principle  and  authority,  with  much  acute- 
ness. 

^  660.  Before  the  revolution,  the  colonies  were 
deemed  foreign  to  each  other,  as  the  British  colonies 
are  still  deemed  foreign  to  the  mother  country ;  and,  of 
course,  their  judgments  were  deemed  foreign  judg- 
ments within  the  scope  of  the  foregoing  rule.  It  fol- 
lowed, that  the  judgments  of  one  colony  were  deemed 
re-examinable  in  another,  not  only  as  to  the  jurisdiction 
of  the  court,  which  pronounced  them ;  but  also  as  to 
the  merits  of  the  controversy,  to  the  extent,  in  which 
they  were  then  understood  to  be  re-examinable  in 
England.  In  some  of  the  colonies,  however,  laws  had 
been  passed,  which  put  judgments  in  the  neighbouring 
colonies  upon  a  like  footing  with  domestic  judgments, 
as  to  their  conclusiveness,  when  the  court  possessed 
jurisdiction.  The  reasonable  construction  of  the  article 
of  the  confederation  on  this  subject  is,  that  it  was  in- 
tended to  give  the  same  conclusive  effect  to  judgments 
of  all  the  states,  so  as  to  promote  uniformity,  as  well  as 


472     CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

certainty,  in  the  rule  among  them.  It  is  probable,  that 
it  did  not  invariably,  and  perhaps  not  generally,  re- 
ceive such  a  construction ;  and  the  amendment  in  the 
constitution  was,  without  question,  designed  to  cure  the 
defects  in  the  existing  provision. 

§  661.  The  clause  of  the  constitution  propounds  three 
distinct  objects ;  first,  to  declare,  that  full  faith  and 
credit  shall  be  given  to  the  records,  &c.  of  every  other 
state ;  secondly,  to  prescribe  the  manner  of  authenti- 
cating them;  and  thirdly,  to  prescribe  their  effect,  when 
so  authenticated.  The  first  is  declared,  and  established 
by  the  constitution  itself,  and  is  to  receive  no  aid  from, 
nor  is  it  susceptible  of  any  quahfication  by,  congress. 
The  other  two  are  expressly  subjected  to  the  legislative 
power. 


CH.  XXX.]    POWERS  OF  CONGRESS-TERRITORIES.      473 


CHAPTER  XXX. 

POWERS  OF  CONGRESS ADMISSION  OF  NEW  STATES, 

AND  ACQUISITION  OF  TERRITORY. 

^  662.  The  third  section  of  the  fourth  article  con* 
tains  two  distinct  clauses.  The  first  is  — "  New  states 
"  may  be  admitted  by  the  congress  into  this  Union. 
"But  no  new  state  shall  be  formed  or  erected  within 
"  the  jurisdiction  of  any  other  state,  nor  any  state  be 
"  formed  by  the  junction  of  two  or  more  states,  or 
"parts  of  states,  without  the  consent  of  the  legislature 
"  of  the  states  concerned,  as  well  as  of  the  congress." 

§  663.  In  the  articles  of  confederation  no  provision 
is  to  be  found  on  this  important  subject.  Canada  was 
to  be  admitted  of  right,  upon  her  acceding  to  the  mea- 
sures of  the  United  States.  But  no  other  colony  (by 
which  was  evidently  meant  no  other  British  colony) 
was  to  be  admitted,  unless  by  the  consent  of  nine  states. 
The  eventual  estabhshment  of  new  states  within  the 
limits  of  the  Union  seems  to  have  been  wholly  over- 
looked by  the  framers  of  that  instrument.  In  the  pro- 
gress of  the  revolution  it  was  not  only  perceived,  that 
from  the  acknowledged  extent  of  the  territory  of  seve- 
ral of  the  states,  and  its  geographical  position,  it  might 
be  expedient  to  divide  it  into  two  states  ;  but  a  muclj 
more  interesting  question  arose,  to  whom  of  right  be- 
longed the  vacant  territory  appertaining  to  the  crown 
at  the  time  of  the  revolution,  whether  to  the  states, 
within  whose  chartered  limits  it  was  situated,  or  to  the 
Union  in  its  federative  capacity.  This  was  a  subject  of 
long  and  ardent  controversy,  and  (as  has  been  already 
suggested)  threatened  to  disturb  the  peace,  if  not  to 

Abn  60 


474        CONSTITUTION  OF  THE   U.  STATES.        [bOOK  III. 

overthrow  the  government  of  the  Union.  It  was  upon 
this  ground,  that  several  of  the  states  refused  to  ratify 
the  articles  of  confederation,  insisting  upon  the  right  of 
the  confederacy  to  a  portion  of  the  vacant  and  unpa- 
tented territory  included  within  their  chartered  limits. 
Some  of  the  states  most  interested  in  the  vacant  and 
unpatented  western  territory,  at  length  yielded  to  the 
earnest  solicitations  of  congress  on  this  subject.  To 
•induce  them  to  make  liberal  cessions,  congress  declar- 
■ed,  that  the  ceded  territory  should  be  disposed  of  for 
the  common  benefit  of  the  Union,  and  formed  into  re- 
publican states,  with  the  same  rights  of  sovereignty, 
freedom,  and  independence,  as  the  other  states ;  to  be 
of  a  suitable  extent  of  territory,  not  less  than  one  hun- 
dred, nor  more  than  one  hundred  and  fifty  miles  square ; 
and  that  the  reasonable  expenses  incurred  by  the  state, 
'since  the  commencement  of  the  war,  in  subduing  Brit- 
ish posts,  or  in  maintaining  and  acquiring  the  territory, 
should  be  reimbursed. 

§  664.  It  was  doubdess  with  reference  principally  to 
this  territory,  that  the  article  of  the  constitution,  now 
under  consideration,  was  adopted.  The  general  pre- 
caution, that  no  new  states  shall  be  formed  without  the 
concurrence  of  the  national  government,  and  of  the 
states  concerned,  is  consonant  to  the  principles,  which 
ought  to  govern  all  such  transactions.  The  particular 
precaution  against  the  erection  of  new  states  by  the 
partition  of  a  state  without  its  own  consent,  ^^ill  quiet 
the  jealousy  of  the  larger  states  ;  as  that  of  the  smaller 
will  also  be  quieted  by  a  like  precaution' against  a  junc- 
tion of  states  without  their  consent.  Under  this  pro- 
vision no  less  than  eleven  states  have,  in  the  space  of 
litde  more  than  forty  years,  been  admitted  into  the  Union 
upon  an   equality   with   the   original   states.      And  it 


CH,  XXX.]    POWERS  OF  CONGRESS  -  TERRITORIES.    475 

scarcely  requires  the  spirit  of  prophecy  to  foretell,  that 
in  a  few  years  the  predominance  of  numbers,  of  popu- 
lation, and  of  power,  will  be  unequivocally  transferred 
from  the  old  to  the  new  states.  May  the  patriotic  wish 
be  for  ever  true  to  the  fact,  felix  prole  parens. 


476  CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 


CHAPTER  XXXI. 

POWERS    OF    CONGRESS— TERRITORIAL     GOVERN- 
MENTS, 

^  665.  The  next  clause  of  the  same  article  is,  "  The 
"  congress  shall  have  power  to  dispose  of,  and  make  all 
*'  needful  rules  and  regulations  respecting  the  territory 
^*  and  other  property  belonging  to  the  United  States ; 
"  and  nothing  in  this  constitution  shall  be  so  construed, 
*'  as  to  prejudice  any  claims  of  the  United  States,  or 
*•  of  any  particular  state."  The  proviso  thus  annexed  to 
the  power  is  certainly  proper  in  itself,  and  was  probably 
rendered  necessary  by  the  jealousies  and  questions  con- 
cerning the  Western  territory,  which  have  been  already 
alluded  to  under  the  preceding  head.  It  was  perhaps 
suggested  by  the  clause  in  the  ninth  article  of  the  con- 
federation, which  contained  a  proviso,  "  that  no  state 
ehall  be  deprived  of  territory  for  the  benefit  of  the  Uni- 
ted States."  - 

§  666,  As  the  general  government  possesses  the 
right  to  acquire  territory,  either  by  conquest,  or  by  treaty, 
it  would  seem  to  follow,  as  an  inevitable  consequence, 
that  it  possesses  the  power  to  govern,  what  it  has  so 
acquired.  The  territory  does  not,  when  so  acquired, 
become  entided  to  self-government,  and  it  is  not  sub- 
ject to  the  jurisdiction  of  any  state.  It  must,  conse- 
quently, be  under  the  dominion  and  jurisdiction  of  the 
Union,  or  it  would  be  without  any  government  at  all. 
In  cases  of  conquest,  the  usage  of  the  world  is,  if  a  na- 
tion is  not  wholly  subdued,  to  consider  the  conquered 
territory,  as  merely  held  by  miUtary  occupation,  until 


CH.  XXXI.]    POWERS  OF  CONGRESS-TERRITORIES.  477 

its  fate  shall  be  determined  by  a  treaty  of  peace. 
But  during  this  intermediate  period  it  is  exclusively 
subject  to  the  government  of  the  conqueror.  In  cases 
of  confirmation  or  cession  by  treaty,  the  acquisition 
becomes  firm  and  stable ;  and  the  ceded  territory  be- 
comes a  part  of  the  nation,  to  which  it  is  annexed, 
either  on  terms  stipulated  in  the  treaty,  or  on  such,  as 
its  new  master  shall  impose.  The  relations  of  the  in- 
habitants with  each  other  do  not  change ;  but  their 
relations  .with  their  former  sovereign  are  dissolved ; 
and  new  relations  are  created  between  them  and  their 
new  sovereign.  The  act  transferring  the  country  trans- 
fers the  allegiance  of  its  inhabitants.  But  the  general 
laws,  not  strictly  political,  remain,  as  they  were,  until 
altered  by  the  new  sovereign.  If  the  treaty  stipulates, 
that  they  shall  enjoy  the  privileges,  rights,  and  immu- 
nities of  citizens  of  the  United  States,  the  treaty,  as  a 
part  of  the  law  of  the  land,  becomes  obligatory  in  these 
respects.  Whether  the  same  eff'ects  would  result  from 
the  mere  fact  of  their  becoming  inhabitants  and  citizens 
by  the  cession,  without  any  express  stipulation,  may 
deserve  inquiry,  if  the  question  should  ever  occur. 
But  they  do  not  participate  in  pohtical  power ;  nor  can 
they  share  in  the  powers  of  the  general  government, 
until  they  become  a  state,  and  are  admitted  into  the 
Union,  as  such.  Until  that  period,  the  territory  re- 
mains subject  to  be  governed  in  such  manner,  as  con- 
gress shall  direct,  under  the  clause  of  the  constitution 
now  under  consideration. 

^  667.  No  one  has  ever  doubted  the  authority  of 
congress  to  errect  territorial  governments  within  the 
territory  of  the  United  States,  under  the  general  lan- 
guage of  the  clause,  "to  make  all  needful  rules  and 
regulations."     Indeed,  with  the  ordinance  of  1787  in 


I 


478  CONSTITUTION  OF  THE  U.  STATES.     [bOOK  III. 

the  very  view  of  the  framers,  as  well  as  of  the  people  of 
the  states,  it  is  impossible  to  doubt,  that  such  a  power 
was  deemed  indispensable  to  the  purposes  of  the 
cessions  made  by  the  states.  So  that,  notwithstanding 
the  generality  of  the  objection,  (already  examined,) 
that  congress  have  no  power  to  erect  corporations,  and 
that  in  the  convention  the  power  was  refused,  we  see, 
that  the  very  power  is  an  incident  to  that  of  regulating 
the  territory  of  the  United  States ;  that  is,  it  is  an  ap- 
propriate means  of  carrying  the  power  into  effect. 
What  shall  be  the  form  of  government  established 
in  the  territories  depends  exclusively  upon  the  discre- 
tion of  congress.  Having  a  right  to  erect  a  territorial 
government,  they  may  confer  on  it  such  powers,  legis- 
lative, judicial,  and  executive,  as  they  may  deem  best. 
They  may  confer  upon  it  general  legislative  powers, 
subject  only  to  the  laws  and  constitution  of  the  United 
States.  If  the  power  to  create  courts  is  given  to  the 
territorial  legislature,  those  courts  aie  to  be  deemed 
strictly  territorial ;  and  in  no  just  sense  constitutional 
courts,  in  which  the  judicial  power  conferred  by  the 
constitution  can  be  deposited.  They  are  incapable  of 
receiving  it.  They  are  legislative  courts,  created  in 
virtue  of  the  general  right  of  sovereignty  in  the  govern- 
ment, or  in  virtue  of  that  clause,  which  enables  con- 
gress to  make  all  needful  rules  and  regulations  respect- 
ing the  territory  of  the  United  States.  The  power  is 
not  confined  to  the  territory  of  the  United  States ;  but 
extends  to  "  other  property  belonging  to  the  United 
States  ;"  so  that  it  may  be  appHed  to  the  due  regula- 
tion of  all  other  personal  and  real  property  rightfully 
belonging  to  the  United  States.  And  so  it  has  been 
constantly  understood,  and  acted  upon. 


CH.  XXXI.]  POWERS  OF  CONGRESS-TERRITORIES.    479 

§  668.  The  power  of  congress  over  the  public 
territory  is  clearly  exclusive  and  universal ;  and  their 
legislation  is  subject  to  no  control ;  but  is  absolute, 
and  unlimited,  unless  so  far  as  is  affected  by  stipula- 
tions in  the  cessions,  or  by  the  ordinance  of  1787,  un- 
der which  any  part  of  it  has  been  settled.  But  the 
power  of  congress  to  regulate  the  other  national 
property  (unless  they  have  acquired,  by  cession  of  the 
states,  exclusive  jurisdiction)  is  not  necessarily  exclu- 
sive in  all  cases.  If  the  national  government  own  a 
fort,  arsenal,  hospital,  or  lighthouse  establishment,  not 
so  ceded,  the  general  jurisdiction  of  the  state  is  not 
excluded  in  regard  to  the  site;  but,  subject  to  the 
rightful  exercise  of  the  powers  of  the  national  govern- 
ment, it  remains  in  full  force. 

^  669.  There  are  some  other  incidental  powers 
given  to  congress,  to  carry  into  effect  certain  other 
provisions  of  the  constitution.  But  they  will  most 
properly  come  under  consideration  in  a  future  part 
of  these  Commentaries.  At  present,  it  may  suffice  to 
say,  that  with  reference  to  due  energy  in  the  govern- 
ment, due  protection  of  the  national  interests,  and  due 
security  to  the  Union,  fewer  powers  could  scarcely 
have  been  granted,  without  jeoparding  the  whole  sys- 
tem. Without  the  power  of  the  purse,  the  power  to  de- 
clare war,  or  to  promote  the  common  defence,  or  gene- 
ral welfare,  w^ould  have  been  wholly  vain  and  illusory. 
Without  the  power  exclusively  to  regulate  commerce, 
the  intercourse  between  the  states  would  have  .been 
constantly  liable  to  domestic  dissentions,  jealousies,  and 
rivalries,  and  to  foreign  hostilities,  and  retaliatory  res- 
trictions. The  other  powers  are  principally  auxiliary 
to  these ;  and  are  dictated  at  once  by  an  enlightened 
policy,  a  devotion  to  justice,  and  a  regard  to  the  per- 


480 


CONSTITUTION  OF  THE  U.  STATES.     [bOOK  HI. 


manence  (may   it   ripen   into  a  perpetuity!)   of  the 
Union. 

§  670.  As  there  are  incidental  powers  belonging  to 
the  United  States  in  their  sovereign  capacity,  so  there 
are  incidental  rights,  obligations,  and  duties*  It  may 
be  asked,  how  these  are  to  be  ascertained.  In  the  first 
place,  as  to  duties  and  obligations  of  a  public  nature, 
they  are  to  be  ascertained  by  the  law  of  nations,  to 
which,  on  asserting  our  independence,  we  necessarily 
became  subject.  In  regard  to  municipal  rights  and 
obligations,  whatever  differences  of  opinion  may  arise 
in  regard  to  the  extent,  to  which  the  common  law  at- 
taches to  the  national  government,  no  one  can  doubt, 
that  it  must,  and  ought  to  be  resorted  to,  in  order  to  as- 
certain many  of  its  rights  and  obligations.  Thus,  when 
a  contract  is  entered  into  by  the  United  States,  we 
naturally  and  necessarily  resort  to  the  common  law,  to 
interpret  its  terms,  and  ascertain  its  obligations.  The 
same  general  rights,  duties,  and  limitations,  which  the 
common  law  attaches  to  contracts  of  a  similar  charac- 
ter between  private  individuals,  are  applied  to  the  con- 
tracts of  the  government.  Thus,  if  the  United  States 
become  the  holder  of  a  bill  of  exchange,  they  are  bound 
to  the  same  diligence,  as  to  giving  notice,  in  order  to 
charge  an  indorser,  upon  the  dishonour  of  the  bill,  as 
a  private  holder  would  be.  In  like  manner,  when  a 
bond  is  entered  into  by  a  surety  for  the  faithful  dis- 
charge of  the  duties  of  an  office  by  his  principal,  the 
nature  and  extent  of  the  obligation,  created  by  the  in- 
strument, are  constantly  ascertained  by  reference  to  the 
common  law ;  though  the  bond  is  given  to  the  govern- 
ment in  its  sovereign  capacity. 


C  H.  XXXII.]  POWERS  OF  CONGRESS-SLAVE-TRADE.  481 


CHAPTER  XXXII. 

PROHIBITIONS    ON    THE    UNITED    STATES. 

^671.  Having  finished  this  review  of  the  powers 
of  congress,  the  order  of  the  subject  next  conducts  us 
to  the  prohibitions  and  hmitations  upon  these  powers, 
which  are  contained  in  the  ninth  section  of  the  first 
article.  Some  of  these  have  already  been  under  dis- 
cussion, and  therefore  will  be  pretermitted. 

§  672.  The  first  clause  is  as  follows :  "  The  mi- 
"  gration,  or  importation  of  such  persons,  as  any  of  the 
"  states  now  existing  shall  think  proper  to  admit,  shall 
"not  be  prohibited  by  the  congress,  prior  to  the  year 
"  one  thousand  eight  hundred  and  eight ;  but  a  tax, 
"  or  duty,  may  be  imposed  on  such  importation,  not 
"  exceeding  ten  dollars  for  each  person." 

§  673.  It  is  to  the  honour  of  America,  that  she 
should  have  set  the  first  example  of  interdicting  and 
abolishing  the  slave-trade,  in  modern  times.  It  is  well 
known,  that  it  constituted  a  grievance,  of  which  some 
of  the  colonies  complained  before  the  revolution,  that 
the  introduction  of  slaves  was  encouraged  by  the 
crown,  and  that  prohibitory  laws  were  negatived.  It 
was  doubtless  to  have  been  wished,  that  the  power  of 
prohibiting  the  importation  of  slaves  had  been  allowed 
to  be  put  into  immediate  operation,  and  had  not  been 
postponed  for  twenty  years.  But  it  is  not  diflicult  to 
account,  either  for  this  restriction,  or  for  the  manner,  in 
which  it  is  expressed.  It  ought  to  be  considered,  as  a 
great  point  gained  in  favour  of  humanity,  that  a  period 
of  twenty  years  might  forever  terminate,  within  the 

Ahr.  61 


482  CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

United  States,  a  traffic,  which  had  so  long,  and  so  loudly 
upbraided  the  barbarism  of  modern  policy.  Even 
within  this  period,  it  might  receive  a  very  considerable 
discouragement,  by  curtailing  the  traffic  between  for- 
eign countries;  and  it  might  even  be  totally  abolished  by 
the  concurrence  of  a  few  states.  "Happy,"  (it  was  then 
added  by  the  Federalist,)  "  would  it  be  for  the  unfortu- 
nate Africans,  if  an  equal  prospect  lay  before  them  of 
being  redeemed  from  the  oppressions  of  their  European 
brethren."  Let  it  be  remembered,  that  at  this  period 
this  horrible  traffic  was  carried  on  with  the  encourage- 
ment and  support  of  every  civilized  nation  of  Europe ; 
and  by  none  with  more  eagerness  and  enterprize,  than 
by  the  parent  country.  America  stood  forth  alone,  un- 
cheered  and  unaided,  in  stamping  ignominy  upon  this 
traffic  on  the  very  face  of  her  constitution  of  govern- 
ment, although  there  were  strong  temptations  of  inter- 
est to  draw  her  aside  from  the  performance  of  this 
great  moral  duty. 

^  674.  The  next  clause  is,  "The  privilege  of  the 
"  writ  of  habeas  corpus  shall  not  be  suspended,  unless 
"  when,  in  cases  of  rebellion  or  invasion,  the  public 
"  safety  may  require  it." 

§  675.  In  order  to  understand  the  meaning  of  the 
terms  here  used,  it  will  be  necessary  to  have  recourse  to 
the  common  law ;  for  in  no  other  way  can  we  arrive 
at  the  true  definition  of  the  writ  of  habeas  corpus.  At 
the  common  law  there  are  various  writs,  called  writs  of 
habeas  corpus.  But  the  particular  one  here  spoken  of  is 
that  great  and  celebrated  writ,  used  in  all  cases  of  illegal 
confinement,  known  by  the  name  of  the  writ  of  habeas 
corpus  ad  subjiciendum,  directed  to  the  person  detaining 
another,  and  commanding  him  to  produce  the  body  of 
the  prisoner,  with  the  day  and  cause  of  his  caption  and 


CH.  XXXII.]  POWERS  OF  CONGRESS -HAB.  CORPUS.    483 

detention,  ad  faciendum,  subjiciendum,  et  recipiendum, 
to  do,  submit  to,  and  receive,  whatsoever  the  judge  or 
court,  awarding  such  writ,  shall  consider  in  that  behalf. 
It  is,  therefore,  justly  esteemed  the  great  bulwark  of 
personal  liberty  ;  since  it  is  the  appropriate  remedy  to 
ascertain,  whether  any  person  is  rightfully  in  confine- 
ment or  not,  and  the  cause  of  his  confinement ;  and  if 
no  sufficient  ground  of  detention  appears,  the  party  is 
entided  to  his  immediate  discharge.  This  writ  is  most 
beneficially  construed ;  and  is  applied  to  every  case  of 
illegal  restraint,  whatever  it  may  be  ;  for  every  restraint 
upon  a  man's  liberty  is,  in  the  eye  of  the  law,  an  im- 
prisonment, wherever  may  be  the  place,  or  whatever 
may  be  the  manner,  in  which  the  restraint  is  effected. 

§  676.  It  is  obvious,  that  cases  of  a  peculiar  emer- 
gency may  arise,  which  may  justify,  nay  even  require, 
the  temporary  suspension  of  the  right  to  this  writ. 
But  as  it  has  frequendy  happened  in  foreign  countries, 
and  even  in  England,  that  the  writ  has,  upon  various 
pretexts  and  occasions,  been  suspended,  whereby  per- 
sons, apprehended  upon  suspicion,  have  suffered  a  long 
imprisonment,  sometimes  from  design,  and  sometimes, 
because  they  were  forgotten,  the  right  to  suspend  it  is 
expressly  confined  to  cases  of  rebellion  or  invasion, 
where  the  public  safety  may  require  it ;  a  very  just 
and  wholesome  restraint,  which  cuts  down  at  a  blow  a 
fruitful  means  of  oppression,  capable  of  being  abused  in 
bad  times  to  the  worst  of  purposes.  Hitherto  no  sus- 
pension of  the  writ  has  ever  been  authorized  by  con- 
gress since  the  estabhshment  of  the  consdtudon.  It 
would  seem,  as  the  power  is  given  to  congress  to 
suspend  the  writ  of  habeas  corpus  in  cases  of  rebellion 
or  invasion,  that  the  right  to  judge,  whether  exigency 
had  arisen,  must  exclusively  belong  to  that  body. 


484  CONSTITUTION  OF  THE  U.  STATES.       [bOOK    III. 

^  677.  'the  next  clause  is,  "  No  bill  of  attainder  or 
"  ex  post  facto  law  shall  be  passed." 

§  678.  Bills  of  attainder,  as  they  are  technically 
called,  are  such  special  acts  of  the  legislature,  as  inflict 
capital  punishments  upon  persons  supposed  to  be  guilty 
of  high  offences,  such  as  treason  and  felony,  without 
any  conviction  in  the  ordinary  course  of  judicial  pro- 
ceedings. If  an  act  inflicts  a  milder  degree  of  punish- 
ment than  death,  it  is  called  a  bill  of  pains  and  penal- 
ties. But  in  the  sense  of  the  constitution,  it  seems, 
tha^  bills  of  attainder  include  bills  of  pains  and  penalties; 
for  the  Supreme  Court  have  said,  "  A  bill  of  attainder 
may  affect  the  Hfe  of  an  individual,  or  may  confiscate 
his  property,  or  both."  In  such  cases,  the  legislature 
assumes  judicial  magistracy,  pronouncing  upon  the 
guilt  of  the  party  without  any  of  the  common  forms  and 
guards  of  trial,  and  satisfying  itself  with  proofs,  when 
such  proofs  are  within  its  reach,  whether  they  are 
conformable  to  the  rules  of  evidence,  or  not.  In  short, 
in  all  such  cases,  the  legislature  exercises  the  highest 
power  of  sovereignty,  and  what  may  properly  be 
deemed  an  irresponsible  despotic  discretion,  being  gov- 
erned solely  by  what  it  deems  political  necessity  or  ex- 
pediency, and  too  often  under  the  influence  of  unrea- 
sonable fears,  or  unfounded  suspicions.  Such  acts 
have  been  often  resorted  to  in  foreign  governments,  as 
a  common  engine  of  state  ;  and  even  in  England  they 
have  been  pushed  to  the  most  extravagant  extent  in 
bad  times,  reaching,  as  wefl  to  the  absent  and  the  dead, 
as  to  the  living.  Sir  Edward  Coke  has  mentioned  it  to 
be  among  the  transcendent  powers  of  parliament,  that 
an  act  may  be  passed  to  attaint  a  man,  after  he  is  dead. 
And  the  reigning  monarch,  who  was  slain  at  Bosworth, 
is  said  to  have  been  attainted  by  an  act  of  parHament 


CH.  XXXII.]  POWERS  OF  CONGRESS -ATTAINDERS.  485 

a  few  months  after  his  death,  notwithstanding  the 
absurdity  of  deeming  him  at  once  in  possession  of  the 
throne  and  a  traitor.  The  punishment  has  often  been 
inflicted  without  calling  upon  the  party  accused  to 
answer,  or  without  even  the  formality  of  proof;  and 
sometimes,  because  the  law,  in  its  ordinary  course  of 
proceedings,  would  acquit  the  offender.  The  injustice 
and  iniquity  of  such  acts,  in  general,  constitute  an  irre- 
sistible argument  against  the  existence  of  the  power. 
In  a  free  government  it  would  be  intolerable ;  and  in 
the  hands  of  a  reigning  faction,  it  might  be,  and  probably 
would  be,  abused  to  the  ruin  and  death  of  the  most  vir- 
tuous citizens.  Bills  of  this  sort  have  been  most  usually 
passed  in  England  in  times  of  rebellion,  or  of  gross 
subserviency  to  the  crown,  or  of  violent  political  ex- 
citements ;  periods,  in  which  all  nations  are  most  liable 
(as  well  the  free,  as  the  enslaved)  to  forget  their  du- 
ties, and  to  trample  upon  the  rights  and  liberties  of 
others. 

^  679.  Of  the  same  class  are  ex  post  facto  laws, 
that  is  to  say,  (in  a  literal  sense,)  laws  passed  after  the 
act  done.  The  terms,  ex  post  facto  laws,  in  a  compre- 
hensive sense,  embrace  all  retrospective  laws,  or  laws 
governing,  or  controlling  past  transactions,  whether 
they  are  of  a  civil,  or  a  criminal  nature.  And  there  have 
not  been  wanting  learned  minds,  that  have  contended 
with  no  small  force  of  authority  and  reasoning,  that 
such  ought  to  be  the  interpretation  of  the  terms  in  the 
constitution  of  the  United  States.  As  an  original 
question,  the  argument  would  be  entitled  to  grave  con- 
sideration ;  but  the  current  of  opinion  and  authority  has 
been  so  generally  one  way,  as  to  the  meaning  of  this 
phrase  in  the  state  constitutions,  as  well  as  in  that  of 
the  United  States,  ever  since  their  adoption,  that  it  is 


486  COJVSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

difficult  to  feel,  that  it  is  now  an  open  question.  The 
general  interpretation  has  been,  and  is,  that  the  phrase 
applies  to  acts  of  a  criminal  nature  only ;  and,  that  the 
prohibition  reaches  every  law,  whereby  an  act  is  declar- 
ed a  crime,  and  made  punishable  as  such,  when  it  was 
not  a  crime,  when  done ;  or  whereby  the  act,  if  a  crime, 
is  aggravated  in  enormity,  or  punishment ;  or  whereby 
different,  or  less  evidence,  is  required  to  convict  an 
offender,  than  was  required,  when  the  act  w^as  com- 
mitted. 

^  680.  The  next  clause  (passing  by  such,  as  have 
been  already  considered)  is,  "No  money  shall  be 
"drawn  from  the  treasury,  but  in  consequence  of  ap- 
"  propriations  made  by  law.  And  a  regular  statement 
"  and  account  of  the  receipts  and  expenditures  of  all 
"  public  money  shall  be  published  from  time  to  time." 

^681.  The  object  is  apparent  upon  the  shghtest 
examination.  It  is  to  secure  regularity,  punctuality, 
and  fidelity,  in  the  disbursement  of  the  public  money. 
As  all  the  taxes  raised  from  the  people,  as  well  as  the 
revenues  arising  from  other  sources,  are  to  be  applied 
to  the  discharge  of  the  expenses,  and  debts,  and  other 
engagements  of  the  government,  it  is  highly  proper, 
that  congress  should  possess  the  power  to  decide,  how 
and  when  any  money  should  be  applied  for  these 
purposes.  If  it  were  otherwise,  the  executive  would 
possess  an  unbounded  power  o.ver  the  public  purse  of 
the  nation ;  and  might  apply  all  its  monied  resources 
at  his  pleasure.  The  power  to  control,  and  direct  the 
appropriations,  constitutes  a  most  useful  and  salutary 
check  upon  profusion  and  extravagance,  as  well  as  up5n 
corrupt  influence  and  pubhc  peculation.  In  arbitrary 
governments  the  prince  levies  what  money  he  pleases 
from  his  subjects,  disposes  of  it,  as  he  thinks  proper. 


CH.  XXXII.]   POWERS  OF  CONGRESS NOBILITY.       487 

and  is  beyond  responsibility  or  reproof.  It  is  wise  to 
interpose,  in  a  republic,  every  restraint,  by  which 
the  public  treasure,  the  common  fund  of  all,  should  be 
applied  with  unshrinking  honesty  to  such  objects,  as 
legitimately  belong  to  the  common  defence,  and  the 
general  welfare.  Congress  is  made  the  guardian  of 
this  treasure ;  and  to  make  their  responsibility  complete 
and  perfect,  a  regular  account  of  the  receipts  and  ex- 
penditures is  required  to  be  published,  that  the  people 
may  know,  what  money  is  expended,  for  what  pur- 
poses, and  by  what  authority. 

§  682.  The  next  clause  is,  "No  tide  of  nobility  shall 
"  be  granted  by  the  United  States;  and  no  person  hold- 
**  ingany  office  of  profit  or  trust  under  them  shall,  with- 
"  out  the  consent  of  the  congress,  accept  of  any  present, 
"  emolument,  office,  or  title  of  any  kind  whatever,  from 
*'  any  king,  prince,  or  foreign  state." 

^  683.  This  clause  seems  scarcely  to  require  even  a 
passing  notice.  As  a  perfect  equality  is  the  basis  of 
all  our  institutions,  state  and  national,  the  prohibition 
against  the  creation  of  any  tides  of  nobility  seems  pro- 
per, if  not  indispensable,  to  keep  perpetually  ahve  a 
just  sense  of  this  important  truth.  Distinctions  between 
citizens,  in  regard  to  rank,  would  soon  lay  the  founda- 
tion of  odious  claims  and  privileges,  and  silently  sub- 
vert the  spirit  of  independence  and  personal  dignity, 
which  are  so  often  proclaimed  to  be  the  best  security 
of  a  republican  government. 

^  684.  The  other  clause,  as  to  the  acceptance  of 
any  emoluments,  tide,  or  office,  from  foreign  govern- 
ments, is  founded  in  a  just  jealousy  of  foreign  influ- 
ence of  every  sort.  Whether,  in  a  practical  sense,  it 
can  produce  much  efi'ect,  has  been  thought  doubtful.  A 
patriot  will  not  be  likely  to  be  seduced  from  his  duties 


488     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

to  his  country  by  the  acceptance  of  any  title,  or  pres- 
ent, from  a  foreign  power.  An  intriguing,  or  corrupt 
agent,  will  not  be  restrained  from  guilty  machinations 
in  the  service  of  a  foreign  state  by  such  constitutional 
restrictions.  Still,  however,  the  provision  is  highly  im- 
portant, as  it  puts  it  out  of  the  power  of  any  officer  of 
the  government  to  wear  borrowed  honours,  which  shall 
enhance  his  supposed  importance  abroad  by  a  titular 
dignity  at  home. 


CH.  XXXIII.]       PROHIBITIOJVS TREATIES.  489 


CHAPTER  XXXIII. 

PROHIBITIONS  ON    THE  STATES. 

§  685.  The  tenth  section  of  the  first  article  (to  which 
we  are  now  to  proceed)  contains  the  prohibitions  and 
restrictions  upon  the  authority  of  the  states.  Some  of 
these,  and  especially  those,  which  regard  the  power  of 
taxation,  and  the  regulation  of  commerce,  have  already 
passed  under  consideration ;  and  will,  therefore,  be 
here  omitted.  The  others  will  be  examined  in  the  or- 
der of  the  text  of  the  constitution. 

§  686.  The  first  clause  is,  "  No  state  shall  enter  into 
"  any  treaty,  alliance,  or  confederation  ;  grant  letters  of 
"  marque  or  reprisal ;  coin  money  ;  emit  bills  of  credit ; 
"  make  any  thing  but  gold  and  silver  coin  a  tender  in 
"payment  of  debts;  pass  any  bill  of  attainder,  ex  post 
^^  facto  law,  or  law  impairing  the  obligation  of  contracts  ; 
"  or  grant  any  tide  of  nobility." 

^  687.  The  prohibition  against  treaties,  alHances,  and 
confederations,  constituted  a  part  of  the  articles  of  con- 
federation, and  was  from  thence  transferred  in  substance 
into  the  constitution.  The  sound  policy,  nay,  the  ne- 
cessity of  it,  for  the  preservation  of  any  national  govern- 
ment, is  so  obvious,  as  to  strike  the  most  careless  mind. 
If  every  state  were  at  liberty  to  enter  into  any  treaties, 
alliances,  or  confederacies,  with  any  foreign  state,  it 
would  become  utterly  subversive  of  the  power  confided 
to  the  national  government  on  the  same  subject.  En- 
gagements might  be  entered  into  by  different  states, 
utterly  hostile  to  the  interests  of  neighbouring  or  dis- 
tant states ;  and  thus  the  internal  peace  and  harmony 

Ahr.  62 


490         CONSTITUTION  OF  THE  U.  STATES.       [BOOK  III. 

of  the  Union  might  be  destroyed,  or  put  in  jeopardy. 
A  foundation  might  thus  be  laid  for  preferences,  and 
retaliatory  systems,  which  would  render  the  power  of 
taxation,  and  the  regulation  of  commerce,  by  the  na- 
tional government,  utterly  futile.  Besides ;  the  intimate 
dangers  to  the  Union  ought  not  to  be  overlooked,  by 
thus  nourishing  within  its  own  bosom  a  perpetual  source 
of  foreign  corrupt  influence,  which,  in  times  of  pohtical 
excitement  and  war,  might  be  wielded  to  the  destruc- 
tion of  the  independence  of  the  country.  This,  in- 
deed, was  deemed,  by  the  authors  of  the  Federalist, 
too  clear  to  require  any  illustration.  The  corres- 
ponding clauses  in  the  confederation  were  still  more 
strong,  direct,  and  exact,  in  their  language  and  im- 
port. 

^  688.  The  prohibition  to  grant  letters  of  marque  and 
reprisal  stands  upon  the  same  general  ground ;  for 
otherwise  it  would  be  in  the  power  of  a  single  state  to 
involve  the  whole  Union  in  war  at  its  pleasure.  It  is 
true,  that  the  granting  of  letters  of  marque  and  reprisal 
is  not  always  a  preliminary  to  war,  or  necessarily  de- 
signed to  provoke  it.  But  in  its  essence,  it  is  a  hostile 
measure  for  unredressed  grievances,  real  or  supposed ; 
and  therefore  it  is  most  generally  the  precursor  of  an  ap^ 
peal  to  arms  by  general  hostilities.  The  security  (as 
has  been  justly  observed)  of  the  whole  Union  ought 
not  to  be  suffered  to  depend  upon  the  petulance  or  pre- 
cipitation of  a  single  state.  The  constitution  has  wisely 
both  in  peace  and  war,  confided  the  whole  subject  to 
the  general  government.  Uniformity  is  thus  secured 
in  all  operations,  which  relate  to  foreign  powers ;  and 
an  immediate  responsibility  to  the  nation  on  the  part  of 
those,  for  whose  conduct  the  nation  is  itself  respon- 
sible. 


CH.  XXXIII.]       PROHIBITIONS COINAGE.  491 

§  689.  The  next  prohibition  is  to  coin  money.     We 
have  already  seen,  that  the  power'  to  coin  money,  and 
regulate  the  value  thereof,  is  confided  to  the  general 
government.      Under  the  confederation  a  concurrent 
power  was  left   in  the  states,  with  a  restriction,  that 
congress  should  have  the  exclusive  power  to  regulate 
the  alloy  and  value  of  the  coin  struck  by  the  states.    In 
this,   as   in   many   other  cases,    the   constitution   has 
made  a  great  improvement,  upon  the  existing  system. 
Whilst  the  alloy  and  value  depended  on  the  general 
government,  a  right  of  coinage  in  the  several  states 
could  have  no  other  effect,  than  to  multiply  expensive 
mints,  and  diversify  the  forms  and  weights  of  the  circu- 
lating coins.      The  latter  inconvenience  would  defeat 
one  main  purpose,  for  which  the  power  is  given  to  the 
general  government,  viz.  uniformity  of  the  currency ; 
and  the  former  might  be  as  well  accomplished  by  local 
mints  established   by   the   national  government,  if  it 
should  ever  be  found  inconvenient  to  send  bullion,  or 
old  coin  for  recoinage  to  the  central  mint.      The  truth 
is,  that  the  prohibition  had  a  higher  motive,  the  danger 
of  the  circulation  of  base  and  spurious  coin  connived  at 
for  local  purposes,  or  easily  accomplished  by  the  inge- 
nuity of  artificers,  where  the  coins  are  very  various  in 
value  and  denomination,  and  issued  from  so  many  in- 
dependent and  unaccountable  authorities.      This  sub- 
ject has,  however,  been  already  enlarged  on  in  anoth- 
er place. 

§  690.  The  prohibition  to  "emit  bills  of  credit" 
cannot,  perhaps,  be  more  forcibly  vindicated,  than  by 
quoting  the  glowing  language  of  the  Federalist,  a  lan- 
guage justified  by  that  of  almost  every  contemporary 
writer,  and  attested  in  its  truth  by  facts,  from  which  the 
mind  involuntarily  turns  away  at  once  with  disgust  and 


492  CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 

indignation.  "  This  prohibition,"  says  the  Federalist, 
"  must  give  pleasure  to  every  citizen  in  proportion  to 
his  love  of  justice,  and  his  knowledge  of  the  true  springs 
of  public  prosperity.  The  loss,  which  America  has 
sustained  since  the  peace  from  the  pestilent  effects  of 
paper  money  on  the  necessary  confidence  between 
man  and  man  ;  on  the  necessary  confidence  in  the  pub- 
lic councils  ;  on  the  industry  and  morals  of  the  people ; 
and  on  the  character  of  republican  government,  consti- 
tutes an  enormous  debt  against  the  states,  chargeable 
with  this  unadvised  measure,  which  must  long  remain 
unsatisfied ;  or  rather  an  accumulation  of  guilt,  which 
can  be  expiated  no  otherwise,  than  by  a  voluntary  sac- 
rifice on  the  altar  of  justice  of  the  power,  which  has 
been  the  instrument  of  it.  In  addition  to  these  persua- 
sive considerations,  it  may  be  observed,  that  the  same 
reasons,  which  show  the  necessity  of  denying  to  the 
states  the  power  of  regulating  coin,  prove  with  equal 
force,  that  they  ought  not  to  be  at  liberty  to  substitute 
a  paper  medium,  instead  of  coin.  Had  every  state  a 
right  to  regulate  the  value  of  its  coin,  there  might  be  as 
many  different  currencies,  as  states  ;  and  thus  the  in- 
tercourse among  them  would  be  impeded.  Retrospec- 
tive alterations  in  its  value  might  be  made ;  and  thus 
the  citizens  of  other  states  be  injured,  and  animosities 
be  kindled  among  the  states  themselves.  The  subjects 
of  foreign  powers  might  suffer  from  the  same  cause ; 
and  hence  the  Union  be  discredited,  and  embroiled  by 
the  indiscretion  of  a  single  member.  No  one  of 
these  mischiefs  is  less  incident  to  a  power  in  the 
states  to  emit  paper  money,  than  to  coin  gold  or  sil- 


I 


ver." 


§  691.  Without  doubt  the  melancholy  shades  of  this 
picture  were  deepened  by  the  urgent  distresses  of  the 


CH.  XXXIII.]    PROHIBITIONS PAPER  MONEY.  493 

revolutionary  war,  and  the  reluctance  of  the  states  to 
perform  their  proper  duty.  And  some  apology,  if  not 
some  justification  of  the  proceedings,  may  be  found  in 
the  eventful  transactions  and  sufferings  of  those  times. 
But  the  history  of  paper  money,  without  any  adequate 
funds  pledged  to  redeem  it,  and  resting  merely  upon 
the  pledge  of  the  public  faith,  has  been  in  all  ages  and 
in  all  nations  the  same.  It  has  constantly  become 
more  and  more  depreciated  ;  and  in  some  instances  has 
ceased  from  this  cause  to  have  any  circulation  whatso- 
ever, whether  issued  by  the  irresistible  edict  of  a  des- 
pot, or  by  the  more  alluring  order  of  a  republican  con- 
gress. There  is  an  abundance  of  illustrative  facts  scat- 
tered over  the  history  of  those  of  the  American  colo- 
nies, which  ventured  upon  this  pernicious  scheme  of  rais- 
ing money  to  supply  the  public  wants,  during  their  sub- 
jection to  the  British  crown  ;  and  in  the  several  states, 
from  the  declaration  of  independence  down  to  the  pres- 
ent times.  Even  the  United  States,  with  almost  inex- 
haustible resources,  and  with  a  population  of  9,000,000 
of  inhabitants,  exhibited  during  the  late  war  with 
Great-Britain  the  humiliating  spectacle  of  treasury 
notes,  issued  and  payable  in  a  year,  remaining  unre- 
deemed, and  sunk  by  depreciation  to  about  half  of  their 
nominal  value ! 

^  692.  It  would  seem  to  be  obvious,  that  as  the 
states  are  expressly  prohibited  from  coining  money,  the 
prohibition  would  be  wholly  ineffectual,  if  they  might 
create  a  paper  currency,  and  circulate  it  as  money. 
But,  as  it  might  become  necessary  for  the  states  to 
borrow  money,  the  prohibition  could  not  be  intended  to 
prevent  such  an  exercise  of  power,  on  giving  to  the 
lender  a  certificate  of  the  amount  borrowed,  and  a 
promise  to  repay  it. 


494   CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

§  693.  What,  then,  is  the  true  meaning  of  the  phrase 
"bills  of  credit"  in  the  constitution?     In  its  enlarged, 
and  perhaps  in  its  literal  sense,  it  may  comprehend  any 
instrument,  by  which  a  state  engages  to  pay  money  at 
a  future  day  (and  of  course,  for  which  it  obtains  a  pres- 
ent credit ;)  and  thus  it  would  include  a  certificate  giv- 
en for  money  borrow^ed.     But  the  language  af  the  con- 
stitution itself,  and  the  mischief  to  be  prevented,  which 
we  know  from  the  history  of  our  country,  equally  limit 
the  interpretation  of  the  terms.      The  word  "  emit "  is 
never  employed  in  describing  those  contracts,  by  which 
a  state  binds  itself  to  pay  money  at  a  future  day  for 
services  actually  received,  or  for  money  borrowed  for 
present  use.     Nor  are  instruments,  executed  for  such 
purposes,  in  common  language  denominated  "  bills  of 
credit."     To  emit  bills  of  credit  conveys  to  the  mind 
the  idea  of  issuing  paper,  intended  to  circulate  through 
the  community  for  its  ordinary  purposes,  as  money, 
which  paper  is  redeemable  at  a  future  day.     This  is  the 
sense,  in  which  the  terms  of  the  constitution  have  been 
generally  understood.     The  phrase  (as  we  have  seen) 
v*^as  well  known,  and  generally  used  to  indicate  the 
paper  currency,  issued  by  the  states  during  their  colo- 
nial dependence.      During  the  war  of  our  revolution 
the  paper  currency  issued  by  congress  was  constantly 
denominated,  in  the  acts  of  that  body,  bills  of  credit ; 
and  the  like  appellation  was  applied  to  similar  currency 
issued  by  the  states.     The  phrase  had  thus  acquired  a 
determinate  and  appropriate  meaning.      At  the  time  of 
the  adoption  of  the  constitution,  bills  of  credit  were 
universally  understood  to  signify  a  paper  medium  in- 
tended to  circulate  between  individuals,  and  betw^een 
government  and  individuals,  for  the  ordinary  purposes 
of  society.     Such  a  medium  has  always  been  liable  to 


CH.  XXXIII.]    PROHIBITIONS PAPER  MONEY.  495 

considerable  fluctuation.  Its  value  is  continually  chang- 
ing ;  and  these  changes,  often  great  and  sudden,  expose 
individuals  to  immense  lossess,  are  the  sources  of  ruin- 
ous speculations,  and  destroy  all  proper  confidence 
between  man  and  man.  In  no  country,  more  than  our 
own,  had  these  truths  been  felt  in  all  their  force.  In 
none  had  more  intense  suffering,  or  more  wide-spread- 
ing ruin  accompanied  the  system.  It  v^as,  therefore, 
the  object  of  the  prohibition  to  cut  up  the  whole  mis- 
chief by  the  roots,  because  it  had  been  deeply  felt 
throughout  all  the  states,  and  had  deeply  affected  the 
prosperity  of  all.  The  object  of  the  prohibition  was  not 
to  prohibit  the  thing,  w^hen  it  bore  a  particular  name ; 
but  to  prohibit  the  thing,  whatever  form  or  name  it 
might  assume.  If  the  words  are  not  merely  empty 
sounds,  the  prohibition  must  comprehend  the  emission 
of  any  paper  medium  by  a  state  government  for  the 
purposes  of  common  circulation.  It  would  be  prepos- 
terous to  suppose,  that  the  constitution  meant  solemnly 
to  prohibit  an  issue  under  one  denomination,  leaving 
the  powder  complete  to  issue  the  same  thing  under 
another.  It  can  never  be  seriously  contended,  that 
the  constitution  means  to  prohibit  names,  and  not  things ; 
to  deal  with  shadows,  and  to  leave  substances.  What 
would  be  the  consequence  of  such  a  construction*? 
That  a  very  important  act,  big  with  great  and  ruinous 
mischief,  and  on  that  account  forbidden  by  words  the 
most  appropriate  for  its  description,  might  yet  be  per- 
formed by  the  substitution  of  a  name.  That  the  con- 
stitution, even  in  one  of  its  vital  provisions,  might  be 
openly  evaded  by  giving  a  new  name  to  an  old  thing. 
Call  the  thing  a  bill  of  credit,  and  it  is  prohibited. 
Call  the  same  thing  a  certificate,  and  it  is  constitu- 
tional. 


496    CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

§  694.  The  next  prohibition  is,  that  no  state  shall 
"  make  any  thing  but  gold  and  silver  coin,  a  tender  in 
"payment  of  debts."  This  clause  was  manifestly 
founded  in  the  same  general  policy,  which  procured  the 
adoption  of  the  preceding  clause.  The  history,  indeed, 
of  the  various  laws,  which  were  passed  by  the  states 
in  their  colonial  and  independent  character  upon  this 
subject,  is  startling  at  once  to  our  morals,  to  our  patriot- 
ism, and  to  our  sense  of  justice.  Not  only  was  paper 
money  issued,  and  declared  to  be  a  tender  in  payment 
of  debts,;  but  laws  of  another  character,  well  known 
under  the  appellation  of  tender  laws,  appraisement  laws, 
instalment  laws,  and  suspension  laws,  were  from  time 
to  time  enacted,  which  prostrated  all  private  credit, 
and  all  private  morals.  By  some  of  these  laws,  the 
due  payment  of  debts  was  suspended ;  debts  were, 
in  violation  of  the  very  terms  of  the  contract,  authorized 
to  be  paid  by  instalments  at  different  periods  ;  prop- 
erty of  any  sort,  however  worthless,  either  real  or  per- 
sonal, might  be  tendered  by  the  debtor  in  payment  of 
his  debts;  and  the  creditor  was  compelled  to  take  the 
property  of  the  debtor,  which  he  might  seize  on  exe- 
cution, at  an  appraisement  wholly  disproportionate  to  its 
known  value.  Such  grievances,  and  oppressions,  and 
others  of  a  like  nature,  were  the  ordinary  results  of 
legislation  during  the  revolutionary  war,  and  the  inter- 
mediate period  down  to  the  formation  of  the  constitu- 
tion. They  entailed  the  most  enormous  evils  on  the 
country  ;  and  introduced  a  system  of  fraud,  chicanery, 
and  profligacy,  which  destroyed  all  private  confidence, 
industry,  and  enterprise. 

§  695.  The  next  prohibition  is,  that  no  state  shall 
"  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law 
"  impairing  the  obligation  of  contracts."     The  two  form- 


CH.  XXXIII.]       PROHIBITIONS ATTAINDER.  497 

er  require  no  commentary,  beyond  what  has  been  al- 
ready offered,  under  a  siaiilar  prohibitory  clause  applied 
to  the  government  of  the  United  States.     The  same 
policy  and  principles  apply  to  each.      It  would  have 
been  utterly  useless,  if  not  absurd,  to  deny  a  power  to 
the  Union,  which  might  at  the  same  time  be  applied 
by  the  states  to  purposes  equally  mischievous,  and  ty- 
rannical ;  and  which  might,  when  applied  by  the  states, 
be  for  the  very  purpose  of  subverting  the  Union.     Be- 
fore the  constitution  of  the  United  States  was  adopted, 
every  state,  unless  prohibited  by  its  own  constitution, 
might  pass  a  bill  of  attainder,  or  ex  post  facto  law,  as  a 
general  result  of  its  sovereign  legislative  power.     And 
such  a  prohibition  would  not  be  imphed  from  a  consti- 
tutional provision,  that  the  legislative,  executive,  and 
judiciary  departments  shall  be  separate,  and  distinct ; 
that  crimes  shall  be  tried  in  the  county,  where  they  are 
committed  ;  or  that  the  trial  by  jury  shall  remain  invio- 
late.    The  power  to  pass  such  laws  would  still  remain, 
at  least  so  far  as  respects  crimes  committed  without  the 
state.  .  During  the  revolutionary  war,  bills  of  attainder, 
and  ex  post  facto  acts  of  confiscation  were  passed  to  a 
wide  extent ;  and  the  evils  resulting  therefrom  were 
supposed,  in  times  of  more  cool  reflection,  to  have  far 
outweighed  any  imagined  good. 


Abr,  63 


498  CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 


CHAPTER  XXXIV. 

PROHIBITIONS  ON  THE  STATES IMPAIRING 

CONTRACTS. 

^  696.  The  remaining  clause,  as  to  impairing  the 
obligation  of  contracts,  will  require  a  more  full  and  de- 
liberate examination. 

^  697.  In  the  first  place,  what  is  to  be  deemed  a 
contract,  in  the  constitutional  sense  of  this  clause  ?  A 
contract  is  an  agreement  to  do,  or  not  to  do,  a  particular 
thing ;  or  (as  was  said  on  another  occasion)  a  contract  is 
a  compact  between  two  or  more  persons.  A  contract 
is  either  executory,  or  executed.  An  executory  con- 
tract is  one,  in  which  a  party  binds  himself  to  do,  or 
not  to  do,  a  particular  thing.  An  executed  contract  is 
one,  in  which  the  object  of  the  contract  is  performed. 
This  differs  in  nothing  from  a  grant ;  for  a  contract 
executed  conveys  a  chose  in  possession;  a, contract  exe- 
cutory conveys  only  a  chose  in  action.  Since,  then,  a 
grant  is  in  fact  a  contract  executed,  the  obligation  of  which 
continues ;  and  since  the  consdtution  uses  the  gene- 
ral term,  contract,  without  distinguishing  between  those, 
which  are  executory,  and  those,  which  are  executed ;  it 
must  be  construed  to  comprehend  the  former,  as  well 
as  the  latter.  A  state  law,  therefore,  annulling  conveyan- 
ces between  individuals,  and  declaring,  that  the  grantors 
shall  stand  seized  of  their  former  estates  notwith- 
standing those  grants,  would  be  as  repugnant  to  the 
constitution,  as  a  state  law  discharging  the  vendors 
from  the  obligation  of  executing  their  contracts  of  sale 


CH.  XXXIV.      PROHIBITIONS — CONTRACTS.  499 

by  conveyances.  It  would  be  strange,  indeed,  if  a  con- 
tract to  convey  were  secured  by  the  constitution,  \  hile 
an  absolute  conveyance  remained  unprotected.  That 
the  contract,  while  executory,  was  obUgatory ;  but  when 
executed,  might  be  avoided. 

§  698.  Contracts,  too,  are  express,  or  implied. 
Express  contracts  are,  where  the  terms  of  the  agree- 
ment are  openly  avowed,  and  uttered  at  the  time  of  the 
making  of  it.  Implied  contracts  are  such,  as  reason 
and  justice  dictate  from  the  nature  of  the  transaction, 
and  which  therefore  the  law  presumes,  that  every  man 
undertakes  to  perform.  The  constitution  makes  no 
distinction  between  the  one  class  of  contracts  and  th^ 
other.  It  then  equally  embraces,  and  applies  to  both. 
Indeed,  as  by  far  the  largest  class  of  contracts  in  civil 
society,  in  the  ordinary  transactions  of  life,  are  implied, 
there  would  be  very  little  object  in  securing  the  inviola- 
bility of  express  contracts,  if  those,  which  are  implied, 
might  be  impaired  by  state  legislation.  The  constitu- 
tion is  not  chargeable  with  such  folly,  or  inconsistency. 
Every  grant  in  its  own  nature  amounts  to  an  extin- 
guishment of  the  right  of  the  grantor,  and  impHes  a 
contract  not  to  re-assert  it.  A  party  is,  therefore,  al- 
ways estopped  by  his  own  grant.  How  absurd  would 
it  be  to  provide,  that  an  express  covenant  by  him, 
as  a  muniment  attendant  upon  the  estate,  should  bind 
him  for  ever,  because  executory,  and  resting  in  action  ; 
and  yet,  that  he  might  re-assert  his  title  to  the  estate, 
and  dispossess  his  grantee,  because  there  was  only  an 
implied  covenant  not  to  re-assert  it. 

^  699.  In  the  next  place,  what  is  the  obligation  of 
a  contract  1  It  would  seem  difficult  to  substitute  words 
more  intelligible,  or  less  liable  to  misconstruction,  than 
these.    And  yet  they  have  given  rise  to  much  acute 


500     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

disquisition,  as  to  their  real  meaning  in  the  constitution. 
It  has  been  said,  that  right  and  obligation  are  correla- 
tive terms.  Whatever  I,  by  my  contract,  give  another 
a  right  to  require  of  me,  I,  by  that  act  lay  myself  under 
an  obligation  to  yield  or  bestow.  The  obligation  of 
every  contract,  then,  will  consist  of  that  right,  or  power 
over  my  will  or  actions,  which  I,  by  my  contract,  con- 
fer on  another.  And  that  right  and  power  will  be  found 
to  be  measured,  neither  by  moral  law  alone,  nor  by 
universal  law  alone,  nor  by  the  laws  of  society  alone  ; 
but  by  a  combination  of  the  three ;  an  operation,  in 
which  the  moral  law  is  explained,  and  applied  by  the 
law  of  nature,  and  both  modified,  and  adapted  to  the 
exigencies  of  society  by  positive  law.  In  an  advanced 
state  of  society,  all  contracts  of  men  receive  a  relative, 
and  not  a  positive  interpretation.  The  state  construes 
them,  the  state  applies  them,  the  state  controls  them, 
and  the  state  decides,  how  far  the  social  exercise  of  the 
rights,  which  the^  give  over  each  party,  can  be  justly  as- 
serted. Again,  it  has  been  said,  that  the  constitution 
distinguishes  between  a  contract,  and  the  obligation  of 
a  contract.  The  latter  is  the  law,  which  binds  the  parties 
to  perform  their  agreement.  The  law,  then,  which  has 
this  binding  obligation,  must  govern  and  control  the 
contract  in  every  shape,  in  which  it  is  intended  to  bear 
upon  it.  Again,  it  has  been  said,  that  the  obligation  of 
a  contract  consists  in  the  power  and  efficacy  of  the 
law,  which  appHes  to,  and  enforces  performance  of  it, 
or  an  equivalent  for  non-performance.  The  obligation 
does  not  inhere,  and  subsist  in  the  contract  itself,  pro- 
prio  vigore,  but  in  the  law  applicable  to  the  contract. 
And  again,  it  has  been  said,  that  a  contract  is  an  agree- 
ment of  the  parties  ;  and,  if  it  be  not  illegal,  it  binds 
'  them  to  the   extent  of  their  stipulations.     Thus,  if  a 


CH.  XXXIV.]    PROHIBITIONS  CONTRACTS.  501 

party  contracts  to  pay  a  certan  sum  on  a  certain  day, 
the  contract  binds  him  to  perform  it  on  that  day,  and 
this  is  its  obligation. 

^  700.  It  seems  agreed,  that,  when  the  obligation  of 
contracts  is  spoken  of  in  the  constitution,  we  are  to 
understand,  not  the  mere  moral,  but  the  legal  obligation 
of  contracts.  The  moral  obligation  of  contracts  is,  so 
far  as  human  society  is  concerned,  of  an  imperfect  kind, 
which  the  parties  are  left  free  to  obey  or  not,  as  they 
please.  It  is  addressed  to  the  conscience  of  the  parties, 
under  the  solemn  admonitions  of  accountability  to  the 
Supreme  Being.  No  human  lawgiver  can  either  im- 
pair or  reach  it.  The  constitution  has  not  in  contem- 
plation any  such  obligation,  but  such  only,  as  might  be 
impaired  by  a  state,  if  not  prohibited.  It  is  the  civil 
obligation  of  contracts,  which  it  is  designed  to  reach, 
that  is,  the  obligation,  which  is  recognised  by,  and  re- 
sults from  the  law  of  the  state,  in  which  it  is  made. 
If,  therefore,  a  contract,  when  made,  is  by  the  law  of 
the  place  dclared  to  be  illegal,  or  deemed  to  be  a 
nullity,  or  a  nude  pact,it  has  no  civil  obligation,  because 
the  law  in  such  cases  forbids  its  having  any  binding 
efficacy,  or  force.  It  confers  no  legal  right  on  the  one 
party,  and  no  correspondent  legal  duty  on  the  other. 
There  is  no  means  allowed,  or  recognised,  to  enforce  it ; 
for  the  maxim  is,  ex  nudo  pacto  non  oritur  actio.  But 
when  it  does  not  fall  within  the  predicament  of  being 
either  illegal,  or  void,  its  obligatory  force  is  coextensive 
with  its  stipulations. 

^  701.  Nor  is  this  obligatory  force  so  much  the  re- 
sult of  the  positive  declarations  of  the  municipal  law,  as 
of  the  general  principles  of  natural,  or,  (as  it  is  some- 
times called)  universal  law.  In  a  state  of  nature,  inde- 
pendent of  the    obligations  of  positive  law,  contracts 


502  CONSTITUTION  OF  THE  U.  STATES.     [bOOK  III. 

may  be  formed,  and  their  obligatory  force  be  complete. 
Between  independent  nations,  treaties  and  compacts 
are  formed,  which  are  demeed  universally  obligatory ; 
and  yet  in  no  just  sense  can  they  be  deemed  depen- 
dent on  municipal  law.  Nay,  there  may  exist  (ab- 
stracdy  speaking)  a  perfect  obligation  in  contracts, 
where  there  are  no  known  and  adequate  means  to  en- 
force them;  as,  for  instance,  between  independent 
nations,  where  their  relative  strength  and  power  pre- 
clude the  possibility,  on  the  side  of  the  weaker  par'y, 
of  enforcing  them.  So  in  the  same  government,  whiere 
a  contract  is  made  by  a  state  with  one  of  its  own  cit- 
zens,  which  yet  its  laws  do  not  permit  to  be  enforced 
by  any  action  or  suit.  In  this  predicament  are  the 
United  States,  who  are  not  suable  on  any  contracts 
made  by  themselves ;  but  no  one  doubts,  that  these  are 
still  obligatory  on  the  United  States.  Yet  their  obliga- 
tion is  not  recognised  by  any  positive  municipal  law  in 
a  great  variety  of  cases.  It  depends  altogether  upon 
principles  of  public  or  universal  law.  Still,  in  these 
cases  there  is  a  right  in  the  one  party  to  have  the  con- 
tract performe'd,  and  the  duty  on  the  other  side  to  per- 
form it.  But,  generally  speaking,  when  we  speak  of 
the  obhgation  of  a  contract,  we  include  in  the  idea  some 
known  means  acknowledged  by  the  municipal  law  to 
enforce  it.  Where  all  such  means  are  absolutely  de- 
nied, the  obligation  of  the  contract  is  understood  to  be 
impaired,  though  it  may  not  be  completely  annihilated. 
Rights  may,  indeed,  exist  without  any  present  adequate 
correspondent  remedies  between  private  persons. 
Thus,  a  state  may  refuse  to  allow  imprisonment  for 
debt ;  and  the  debtor  may  have  no  property.  But 
still  the  right  of  the  creditor  remains  ;  and  he  may  en- 
force it  against  the  future  property  of  the  debtor.     So 


CH.  XXXIV.]       PROHIBITIONS  —  CONTRACTS.  503 

a  debtor  may  die  without  leaving  any  known  estate,  or 
without  any  known  representative.  In  such  cases  we 
should  not  say,  that  the  right  of  the  creditor  was  gone ; 
but  only,  that  there  was  nothing,  on  which  it  could  pre- 
sently operate.  But  suppose  an  administrator  should 
be  appointed,  and  property  in  contingency  should  fall 
in,  the  right  might  then  be  enforced  to  the  extent  of 
the  existing  means. 

^  702.  The  civil  obligation  of  a  contract,  then, 
though  it  can  never  arise,  or  exist  contrary  to  positive 
law,  may  arise  or  exist  independently  of  it ;  and  it 
may  exist,  notwithstanding  there  may  be  no  present 
adequate  remedy  to  enforce  it.  Wherever  the  muni- 
cipal law  recognises  an  absolute  duty  to  perform  a  con- 
tract, there  the  obligation  to  perform  it  is  complete, 
although  there  may  not  be  a  perfect  remedy. 

§  703.  In  the  next  place,  what  may  properly  be 
deemed  impairing  the  obligation  of  contracts  in  the 
sense  of  the  constitution?  It  is  perfectly  clear,  that 
any  law,  which  enlarges,  abridges,  or  in  any  manner 
changes  the  intention  of  the  parties,  resulting  from  the 
stipulations  in  the  contract,  necessarily  impairs  it.  The 
manner  or  degree,  in  which  this  change  is  effected,  can 
in  no  respect  influence  the  conclusion;  for  whether 
the  law  affect  the  validity,  the  construction,  the  dura- 
tion, the  discharge,  or  the  evidence  of  the  contract,  it 
impairs  its  obligation,  though  it  may  not  do  so  to  the 
same  extent  in  all  the  supposed  cases.  Any  devia- 
tion from  its  terms  by  postponing,  or  accelerating  the 
period  of  performance,  which  it  prescribes ;  imposing 
conditions  not  expressed  in  the  contract ;  or  dispensing 
with  the  performance  of  those,  which  are  a  part  of  the 
contract ;  however  minute,  or  apparently  immaterial  in 
their  effect  upon  it,  impair  its  obligation.     A  fortiori, 


504  COIV^TITUTION    OF  THE  U.  STATES.    [bOOK  III. 

a  law,  which  makes  the  contract  wholly  invalid,  or  ex- 
tinguishes, or  releases  it,  is  a  law  impairing  it.     Nor  is 
this  all.     Although  there  is  a  distinction  between  the 
obligation  of  a  contract,  and  a  remedy  upon  it ;  yet  if 
there  are  certain  remedies  existing  at  the  time,  when  it 
is  made,  all  of  which  are  afterwards  wholly  extinguish- 
ed by  new  laws,  so  that  there  remain  no  means  of  en- 
forcing its  obligation,  and  no  redress ;  such  an  aboli- 
tion of  all  remedies,  operating  in  presenti,  is  also  an  im- 
pairing of  the  obligation  of  such  contract.     But  every 
change  and  modification  of  the  remedy  does  not  in- 
volve such  a  consequence.     No  one  will   doubt,  that 
the  legislature  may  vary  the  nature  and  extent  of  rem- 
edies, so  always,  that  some  substantive  remedy  be  in 
fact  left.     Nor  can  it  be  doubted,  that  the  legislature 
may  prescribe  the  times  and  modes,  in  which  remedies 
may  be  pursued ;  and  bar  suits  not  brought  within  such 
periods,  and  not  pursued  in  such  modes.     Statutes  of 
limitations  are  of  this  nature ;  and  have   never  been 
supposed  to  destroy  the  obligation  of  contracts  ;  but  to 
prescribe  the  times,  within  which  that  obligation  shall 
be  enforced  by  a  suit ;  and  in  default,  to  deem  it  either 
satisfied,  or  abandoned.     The  obligation  to  perform  a 
contract  is  coeval  with  the  undertaking  to  perform  it. 
It  originates  with  the  contract  itself,  and  operates  an- 
terior to  the  time  of  performance.     The  remedy  acts 
upon  the  broken  contract,  and  enforces  a  pre-existing 
obligation.     And  a  state  legislature  may  discharge  a 
party  from  imprisonment  upon  a  judgment  in  a  civil 
case  of  contract,  without  infringing  the  constitution ;  for 
this  is  but  a  modification  of  the  remedy,  and  does  not 
impair  the  obligation  of  the  contract.     So,  if  a  party 
should  be  in  gaol,  and  give  a  bond  for  the  prison  liber- 
ties, and  to  remain  a  true  prisoner,  until  lawfully  dis- 


CH.  XXXIV.]       PROHIBITIONS CONTRACTS.  505 

charged,  a  subsequent  discharge  by  an  act  of  the  legis- 
lature would  not  impair  the  contract ;  for  it  would  be  a 
lawful  discharge  in  the  sense  of  the  bond. 

§  704.  These  general  considerations  naturally  con- 
duct us  to  some  more  difficult  inquiries  growing  out  of 
them  ;  and  upon  which  there  has  been  a  very  great 
diversity  of  judicial  opinion.  The  great  object  of  the 
framers  of  the  constitution  undoubtedly  was,  to  secure 
the  inviolability  of  contracts.  This  principle  was  to  be 
protected,  in  whatever  form  it  might  be  assailed.  No 
enumeration  w^as  attempted  to  be  made  of  the  modes, 
by  which  contracts  might  be  impaired.  It  would  have 
been  unwise  to  have  made  such  an  enumeration,  since 
it  might  have  been  defective ;  and  the  intention  was  to 
prohibit  every  mode  or  device  for  such  purpose.  The 
prohibition  was  universal. 

^  705.  The  question  has  arisen,  and  has  been  most 
elaborately  discussed,  how  far  the  states  may  constitu- 
tionally pass  an  insolvent  law,  which  shall  discharge 
the  obligation  of  contracts.  It  is  not  doubted,  that  the 
states  may  pass  insolvent  laws,  which  shall  discharge 
the  person,  or  operate  in  the  nature  of  a  cessio  bonorum, 
provided  such  laws  do  not  discharge,  or  intermeddle 
with  the  obligation  of  contracts.  Nor  is  it  denied,  that 
insolvent  laws,  which  discharge  the  obligation  of  con- 
tracts, made  antecedently  to  their  passage,  are  uncon- 
stitutional. But  the  question  is,  how  far  the  states 
may  constitutionally  pass  insolvent  laws,  which  shall 
operate  upon,  and  discharge  contracts,  which  are  made 
subsequently  to  their  passage.  After  the  most  ample 
argument  it  has  at  length  been  settled  by  a  majority  of 
the  Supreme  Court,  that  the  states  may  constitutionally 
pass  such  laws  operating  upon  future  contracts. 

Ahr.  64 


506      CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

§  706.  It  has  been  already  stated,  that  a  grant  is  a 
contract  within  the  meaning  of  the  constitution,  as  much 
as  an  unexecuted  agreement.  The  prohibition,  there- 
fore, equally  reaches  all  interferences  with  private 
grants  and  private  conveyances,  of  whatever  nature  they 
may  be.  But  it  has  been  made  a  question,  whether  it 
applies,  in  the  same  extent,  to  contracts  and  grants  of 
a  state  created  directly  by  a  law,  or  made  by  some  au- 
thorized agent  in  pursuance  of  a  law.  It  has  been 
suggested,  that,  in  such  cases,  it  is  to  be  deemed  an 
act  of  the  legislative  power ;  and  that  all  laws  are  re- 
pealable  by  the  same  authority,  which  enacted  them. 
But  it  has  been  decided  upon  solemn  argument,  that 
contracts  and  grants  made  by  a  state  are  not  less  within 
the  reach  of  the  prohibition,  than  contracts  and  grants 
of  private  persons ;  that  the  quesnon  is  not,  whether 
such  contracts  or  grants  are  made  directly  by  law  in 
the  form  of  legislation,  or  in  any  other  form ;  but  wheth- 
er they  exist  at  all.  The  legislature  may,  by  a  law,  di- 
rectly make  a  grant ;  and  such  grant,  when  once  made, 
becomes  irrevocable,  and  cannot  be  constitutionally  im- 
paired. So  the  legislature  may  make  a  contract  with 
individuals  directly  by  a  law,  pledging  the  state  to  a 
performance  of  it ;  and  then,  when  it  is  accepted,  it  is 
equally  under  the  protection  of  the  constitution.  And 
it  may  be  laid  down,  as  a  general  principle,  that,  when- 
ever a  law  is  in  its  own  nature  a  contract,  and  absolute 
rights  have  vested  under  it,  a  repeal  of  that  law  cannot 
divest  those  rights,  or  annihilate,  or  impair  the  title  so 
acquired.  A  grant  amounts  to  an  extinguishment  of 
the  right  of  the  grantor,  and  implies  a  contract  not  to 
reassert  it. 

§  707.  The   cases  above   spoken  of  are  cases,  in 
which   rights   of  property    are    concerned,   and    are 


CH.  XXXIV.]       PROHIBITIONS CONTRACTS.  507 

manifestly  within  the  scope  of  the  prohibition.  But  a 
question  of  a  more  nice  and  delicate  nature  has  been 
also  litigated ;  and  that  is,  how  far  charters,  granted  by 
a  state,  are  contracts  within  the  meaning  of  the  con- 
stitution. That  the  framers  of  the  constitution  did  not 
intend  to  restrain  the  states  in  the  regulation  of  their 
civil  institutions,  adopted  for  internal  government,  is 
admitted ;  and  it  has  never  been  so  construed.  It  has 
always  been  understood,  that  the  contracts  spoken  of 
in  the  constitution  were  those,  which  respect  pro- 
perty, or  some  other  object  of  value,  and  which  con- 
fer rights  capable  of  being  asserted  in  a  court  of 
justice.  A  charter  is  certainly  in  form  and  sub- 
stance a  contract ;  it  is  a  grant  of  powers,  rights,  and 
privileges ;  and  it  usually  gives  a  capacity  to  take,  and 
to  hold  property.  Where  a  charter  creates  a  corpora- 
tion, it  emphatically  confers  this  capacity ;  for  it  is  an 
incident  to  a  corporation,  (unless  prohibited,)  to  take, 
and  to  hold  property.  A  charter  granted  to  private 
persons  for  private  purposes  is  within  the  terms,  and 
the  reason  of  the  prohibition.  It  confers  rights  and 
privileges,  upon  the  faith  of  which  it  is  accepted.  It 
imparts  obligations  and  duties  on  their  part,  which  they 
are  not  at  liberty  to  disregard ;  and  it  implies  a  con- 
tract on  the  part  of  the  legislature,  that  the  rights  and 
privileges,  so  granted,  shall  be  enjoyed.  It  is  wholly 
immaterial  in  such  cases,  whether  the  corporation  take 
for  their  own  private  benefit,  or  for  the  benefit  of 
other  persons. 

§  708.  A  charter,  then,  being  a  contract  within  the 
scope  of  the  constitution,  the  next  consideration,  which 
has  arisen  upon  this  important  subject  is,  whether  the 
principle  apphes  to  all  charters,  public,  as  well  as  private. 
Corporations  are  divisible  into  two  sorts,  such  as  are 


508  CONSTITUTION  OF    THE  U.  STATES.    [bOOK  III. 

strictly  public,  and  such  as  are  private.  Within  the 
former  denomination  are  included  all  corporations, 
created  for  public  purposes  only,  such  as  cities,  towns, 
parishes,  and  other  public  bodies.  Within  the  latter 
denomination  all  corporations  are  included,  which  do 
not  strictly  belong  to  the  former.  There  is  no  doubt, 
as  to  public  corporations,  which  exist  only  for  public 
purposes,  that  the  legislature  may  change,  modify, 
enlarge,  and  restrain  them ;  with  this  limitation,  how- 
ever, that  property,  held  by  such  corporations,  shall  still 
be  secured  for  the  use  of  those,  for  whom,  and  at  whose 
expense  it  has  been  acquired.  The  principle  may  be 
stated  in  a  more  general  form.  If  a  charter  be  a  mere 
grant  of  political  power,  if  it  create  a  civil  institution, 
to  be  employed  in  the  administration  of  the  govern- 
ment, or,  if  the  funds  be  pubUc  property  alone,  and  the 
.government  alone  be  interested  in  the  management  of 
them,  the  legislative  power  over  such  charter  is  not 
restrained  by  the  constitution,  but  remains  unlimited. 
The  reason  is,  that  it  is  only  a  mode  of  exercising 
public  rights  and  public  powers,  for  the  promotion  of 
the  general  interest ;  and,  therefore,  it  must,  from  its 
very  nature,  remain  subject  to  the  legislative  will,  so 
always  that  private  rights  are  not  infringed,  or  trenched 
upon. 

§  709.  But  an  attempt  has  been  made  to  press  this 
principle  much  farther,  and  to  exempt  from  the  consti- 
tutional prohibition  all  charters,  which,  though  granted 
to  private  persons,  are  in  reality  trusts  for  purposes 
and  objects,  which  may,  in  a  certain  sense,  be  deemed 
public  and  general.  The  first  great  case,  in  which  this 
doctrine  became  the  subject  of  judicial  examination 
and  decision,  was  the  case  of  Dartmouth  College. 
The  legislature  of  New-Hampshire  had,  without   the 


CH.  XXXIV.]       PROHIBITIONS CONTRACTS.  509 

consent  of  the  corporation,  passed  an  act  changing  the 
organization  of  the  original  provincial  charter  of  the 
college,  and  transferring  all  the  rights,  privileges,  and 
franchises  from  the  old  charter  trustees  to  new  trustees, 
appointed  under  the  act.     The  constitutionaUty  of  the 
act  was  contested,  and  after  solemn  argument,  it  was 
deliberately    held   by    the    Supreme  Court,  that   the 
provincial  charter  was  a  contract  within  the  meaning 
of  the  constitution,  and  that  the  amendatory  act  was 
utterly  void,  as  impairing  the  obligation  of  that  charter. 
The  college  was  deemed,  like  other  colleges  of  private 
foundation,  to  be  a  private   eleemosynary  institution, 
endowed,  by  its  charter,  with  a  capacity  to  take  pro- 
perty, unconnected  with  the  government.   Its  funds  were 
bestowed  upon  the  faith  of  the  charter,  and  those  funds 
consisted  entirely  of  private  donations.     It  is  true,  that 
the  uses  were  in  some  sense  public ;  that  is,  for  the 
general  benefit,  and  not  for  the  mere  benefit  of  the  cor- 
porators ;  but  this  did  not  make  the  corporation  a  public 
corporation.     It  was  a  private  institution  for  general 
charity.     It  was  not  distinguishable  in  principle  from 
a  private  donation,  vested  in  private  trustees,  for  a 
public  charity,  or  for  a  particular  purpose  of  beneficence. 
And  the  state  itself,  if  it  had  bestowed  funds  upon  a 
charity  of  the  same  nature,  could  not  resume   those 
funds.     In  short,  the  charter  was  deemed  a  contract, 
to   which   the  government,   and  the  donors,  and  the 
trustees  of  the  corporation,  were  all  parties.     It  was  for 
a  valuable  consideration;  for  the  security  and  disposition 
of  property,  which  was  entrusted  to  the  corporation 
upon  the  faith  of  its  terms ;  and  the  trustees  acquired 
rights  under  it,  which  could  not  be  taken  away;  for 
they  came  to   them  clothed  with  trusts,  which  they 
were  obhged  to  perform,  and  could  not  constitutionally 
disregard. 


510   CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

§  710.  It  has  also  been  made  a  question,  whether  a 
compact  between  two  states  is  within  the  scope  of  the 
prohibition.  And  this  also  has  been  decided  in  the 
affirmative.  The  terms,  compact  and  contract,  are 
synonymous ;  and,  when  propositions  are  offered  by 
one  state,  and  agreed  to,  and  accepted  by  another, 
they  necessarily  constitute  a  contract  between  them. 
There  is  no  difference,  in  reason  or  in  law,  to  distin- 
guish between  contracts  made  by  a  state  with  individ- 
uals, and  contracts  made  between  states.  Each  ought 
to  be  equally  inviolable. 

^711.  Before  quitting  this  subject  it  may  be  proper 
to  remark,  that  as  the  prohibition,  respecting  ex  post 
facto  laws,  applies  only  to  criminal  cases ;  and  the  other 
is  confined  to  impairing  the  obligation  of  contracts ; 
there  are  many  laws  of  a  retrospective  character,  which 
may  yet  be  constitutionally  passed  by  the  state  legis- 
latures, however  unjust,  oppressive,  or  impolitic  they 
may  be.  Retrospective  laws  are,  indeed,  generally  un- 
just ;  and,  as  has  been  forcibly  said,  neither  accord  with 
sound  legislation,  nor  with  the  fundamental  principles 
of  the  social  compact.  Still  they  are,  with  the  excep- 
tions above  stated,  left  open  to  the  states,  according  to 
their  own  constitutions  of  government ;  and  become 
obligatory,  if  not  prohibited  by  the  latter. 

§  712.  Whether,  t  indeed,  independently  of  the 
constitution  of  the  United  States,  the  nature  of  repub- 
lican and  free  governments  does  not  necessarily  im- 
pose some  restraints  upon  the  legislative  power,  has 
been  much  discussed.  It  seems  to  be  the  general 
opinion,  fortified  by  a  strong  current  of  judicial  opinion, 
that  since  the  American  revolution  no  state  govern- 
ment can  be  presumed  to  possess  the  trancendental 
sovereignty  to  take  away  vested  rights  of  property ; 


CH.  XXXIV.]  PROHIBITIONS NOBILITY.  51 1 

to  take  the  property  of  A.  and  transfer  it  to  B.  by  a 
mere  legislative  act.  A  government  can  scarcely 
be  deemed  to  be  free,  where  the  rights  of  property 
are  left  solely  dependent  upon  a  legislative  body,  with- 
out any  restraint.  The  fundamental  maxims  of  a  free 
government  seem  to  require,  that  the  rights  of  personal 
liberty,  and  private  property  should  be  held  sacred. 
At  least,  no  court  of  justice,  in  this  country,  would  be 
warranted  in  assuming,  that  any  state  legislature  pos- 
sessed a  power  to  violate  and  disregard  them  ;  or  that 
such  a  power,  so  repugnant  to  the  common  principles 
of  justice  and  civil  liberty,  lurked  under  any  general 
grant  of  legislative  authority,  or  ought  to  be  implied 
from  any  general  expression  of  the  will  of  the  people, 
in  the  usual  forms  of  the  constitutional  delegation  of 
power.  The  people  ought  not  to  be  presumed  to  part 
with  rights,  so  vital  to  their  security  and  well-being, 
without  very  strong,  and  positive  declarations  to  that 
effect. 

§  713.  The  remaining  prohibition  in  this  clause  is, 
that  no  state  shall  "  grant  any  tide  of  nobility.'*  The 
reason  of  this  prohibition  is  the  same,  as  that,  upon 
which  the  like  prohibition  to  the  government  of  the 
nation  is  founded.  Indeed,  it  w^ould  be  almost  absurd 
to  provide  sedulously  against  such  a  power  in  the  latter, 
if  the  states  were  still  left  free  to  exercise  it.  It  has 
been  emphatically  said,  that  this  is  the  corner-stone  of 
a  republican  government ;  for  there  can  be  litde  dan- 
ger, while  a  nobility  is  excluded,  that  the  government 
will  ever  cease  to  be  that  of  the  people. 


512     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  Ilf. 


CHAPTER  XXXV. 

PROHIBITIONS  ON  THE  STATES. 

^  714.  The  next  clause  of  the  constitution  is, 
"  No  state  shall,  without  the  consent  of  congress,  lay 
"  any  duty  on  tonnage ;  keep  troops,  or  ships  of  war 
"in  time  of  peace;  enter  into  any  agreement  or  com- 
"  pact  with  another  state,  or  with  a  foreign  power ;  or 
"  engage  in  war,  unless  actually  invaded,  or  in  such 
"  imminent  danger,  as  will  not  admit  of  delay." 

^715.  The  first  part  of  this  clause,  respecting  lay- 
ing a  duty  on  tonnage,  has  been  already  considered. 
The  remaining  clauses  have  their  origin  in  the  same 
general  policy  and  reasoning,  which  forbid  any  state 
from  entering  into  any  treaty,  alliance,  or  confederation ; 
and  from  granting  letters  of  marque  and  reprisal.  In 
regard  to  treaties,  alliances,  and  confederations,  they 
are  wholly  prohibited.  But  a  state  may,  with  the  con- 
sent of  congress,  enter  into  an  agreement,  or  compact 
with  another  state,  or  with  a  foreign  power.  What 
precise  distinction  is  here  intended  to  be  taken  be- 
tween treaties y  and  agreements,  and  compacts  is  no- 
where explained ;  and  has  never  as  yet  been  the  sub- 
ject of  any  exact  judicial,  or  bther  examination. 

^716.  The  other  prohibitions  in  the  clause  respect 
the  power  of  making  war,  which  is  appropriately  con- 
fided to  the  national  government.  The  setting  on  foot 
of  an  army,  or  navy  by  a  state,  in  times  of  peace, 
might  be  a  cause  of  jealousy  between  neighbouring 
states,  and  provoke  the  hostilities  of  foreign  bordering 
nations.    In  other  cases,  as  the  protection  of  the  whole 


CH.  XXXV.]       PROHIBITIONS MAKING-WAR.  513 

Union  is  confided  to  the  national  arm,  and  the  national 
power,  it  is  not  fit,  that  any  state  should  possess  mili- 
tary means  to  overawe  the  Union,  or  to  endanger  the 
general  safety.  Still,  a  state  may  be  so  situated,  that 
it  may  become  indispensable  to  possess  military  forces, 
to  resist  an  expected  invasion,  or  insurrection.  The 
danger  may  be  too  imminent  for  delay  ;  and  un- 
der such  circumstances,  a  state  will  have  a  right  to 
raise  troops  for  its  own  safety,  even  without  the  con- 
sent of  congress.  After  war  is  once  begun,  there 
is  no  doubt,  that  a  state  may,  and  indeed  it  ought  to 
possess  the  power,  to  raise  forces  for  its  own  de- 
fence; and  its  co-operation  with  the  national  forces 
may  often  be  of  great  importance,  to  secure  success 
and  vigour  in  the  operations  of  war.  The  prohi- 
bition is,  therefore,  wisely  guarded  by  exceptions 
sufficient  for  the  safety  of  the  states,  and  not  justly 
open  to  the  objection  of  being  dangerous  to  the 
Union. 

§  717.  It  has  been  already  seen,  and  it  will  here- 
after more  fully  appear,  that  there  are  implied,  as  well 
as  express,  prohibitions  in  the  constitution  upon  the 
power  of  the  states.  Among  the  former,  one  clearly 
is,  that  no  state  can  control,  or  abridge,  or  interfere 
with  the  exercise  of  any  authority  under  the  national 
government.  And  it  may  be  added,  that  state  laws, 
as,  for  instance,  state  statutes  of  limitations,  and  state 
insolvent  laws,  have  no  operation  upon  the  rights  or 
contracts  of  the  United  States. 

§  718.  And  here  end  our  commentaries  upon  the 
first  article  of  the  constitution,  embracing  the  organi- 
zation and  powers  of  the  legislative  department  of  the 
government,  and  the  prohibitions  upon  the  state  and 
national   governments.     If  we  here  pause,  but   for   a 

Ahr.  65 


514         CONSTITUTION  OF  THE   U.  STATES.       [bOOK  III. 

moment,  we  cannot  but  be  struck  with  the  reflection, 
how  admirably  this  division  and  distribution  of  legisla- 
tive powers  between  the  state  and  national  governments 
is  adapted  to  preserve  the  liberty,  and  promote  the 
happiness  of  the  people  of  the  United  States.  To  the 
general  government  are  assigned  all  those  powers, 
which  relate  to  the  common  interests  of  all  the  states, 
as  comprising  one  confederated  nation.  While  to  each 
state  is  reserved  all  those  powers,  which  may  affect,  or 
promote  its  own  domestic  interests,  its  peace,  its  pros- 
perity, its  policy,  and  its  local  institutions.  At  the 
same  time,  such  limitations  and  restraints  are  imposed 
upon  each  government,  as  experience  has  demonstrat- 
ed to  be  wise  in  order  to  control  the  public  function- 
Siries,  or  indispensable  to  secure  the  harmonious  opera- 
tions of  the  Union. 


CH.  XXXVl.]       EXECUTIVE  ORGANIZATION.  515 


CHAPTER  XXXVL 

EXECUTIVE  DEPARTMENT ORGANIZATION  OF. 

^719.  In  the  progress  of  our  examination  of  the 
constitution,  we  are  now  arrived  at  the  second  article, 
which  contains  an  enumeration  of  the  organization  and 
powers  of  the  executive  department.  What  is  the 
best  constitution  for  the  executive  department,  and 
what  are  the  powers,  with  which  it  should  be  entrust- 
ed, are  problems  among  the  most  important,  and  prob- 
ably the  most  difficult  to  be  satisfactorily  solved,  of  all, 
which  are  involved  in  the  theory  of  free  governments. 
No  man,  who  has  ever  studied  the  subject  with  pro- 
found attention,  has  risen  from  the  labour  without  an 
increased  and  almost  overwhelming  sense  of  its  intri- 
.  cate  relations,  and  perplexing  doubts.  No  man,  w^ho 
has  thoroughly  read  the  human  history,  and  especially 
the  history  of  republics,  but  has  been  struck  with  the 
consciousness,  how  litde  has  been  hitherto  done  to  es- 
tablish a  safe  depositary  of  power  in  any  hands ;  and 
how  often  in  the  hands  of  one,  or  a  few,  or  many,  of  an 
hereditary  monarch,  or  of  an  elective  chief,  the  executive 
power  has  brought  ruin  upon  the  state,  or  sunk  under 
the  oppressive  burthen  of  its  own  imbecility.  Perhaps 
our  own  history,  hitherto,  does  not  establish,  that  we 
have  wholly  escaped  all  the  dangers;  and  that  here  is 
not  to  be  found,  as  has  been  the  case  in  other  nations, 
•  the  vulnerable  part  of  the  republic. 

^  720.  The  first  clause  of  the  first  section  of  the 
second  article  is  as  follows:  "The  executive  power 
"  shall  be  vested  in  a  President  of  the  United  States 


516     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

"  of  America.  He  shall  hold  his  office  during  the  term 
"  of  four  years ;  and  together  with  the  Vice-President, 
"  chosen  for  the  same  term,  be  chosen  as  follows." 

§  721.  In  considering  this  clause,  three  practical 
questions  are  naturally  suggested :  First,  whether  there 
should  be  a  distinct  executive  department ;  secondly, 
whether  it  should  be  composed  of  more  than  one  per- 
son ;  and,  thirdly,  what  should  be  the  duration  of 
office. 

§  722.  Upon  the  first  question,  Htde  need  be  said. 
All  America  have  at  length  concurred  in  the  propriety 
of  estabhshing  a  distinct  executive  department.  The 
principle  is  embraced  in  every  state  constitution ;  and 
it  seems  now  to  be  assumed  among  us,  as  a  fundamen- 
tal maxim  of  government,  that  the  legislative,  execu- 
tive, and  judicial  departments  ought  to  be  separate,  and 
the  powers  of  one  ought  not  to  be  exercised  by  either  of 
the  others.  The  same  maxim  is  found  recognised  in 
express  terms  in  many  of  our  state  constitutions.  It  is 
hardly  necessary  to  repeat,  that  where  all  these  pow- 
ers are  united  in  the  same  hands,  there  is  a  real  des- 
poUsm,  to  the  extent  of  their  coercive  exercise.  Where, 
on  the  other  hand,  they  exist  together,  and  yet  depend 
for  their  exercise  upon  the  mere  authority  of  recom- 
mendation, (as  they  did  under  the  confederation,) 
they  become  at  once  imbecile  and  arbitrary,  subser- 
vient to  popular  clamour,  and  incapable  of  steady  ac- 
tion. 

§  723.  Taking  it,  then,  for  granted,  that  there  ought 
to  be  an  executive  department,  the  next  consideration 
is,  how  it  ought  to  be  organized.  It  may  be  stated  in 
general  terms,  that  that  organization  is  best,  which  will 
at  once  secure  energy  in  the  executive,  and  safety  to 
the  people.   The  notion,  however,  is  not  uncommon,  and 


CH.  XXXVi.]       EXECUTIVE ORGANIZATION.  517 

occasionally  finds  ingenious  advocates,  that  a  vigorous 
executive  is  inconsistent  with  the  genius  of  a  repub- 
lican government.  It  is  difficult  to  find  any  sufficient 
grounds,  on  w^hich'  to  rest  this  notion;  and  those, 
which  are  usually  stated,  belong  principally  to  that  class 
of  minds,  which  readily  indulge  in  the  belief  of  the 
general  perfection,  as  well  as  perfectibility,  of  human 
nature,  and  deem  the  least  possible  quantity  of  pow- 
er, with  which  government  can  subsist,  to  be  the  best. 
To  those,  who  look  abroad  into  the  world,  and  atten- 
tively read  the  history  of  other  nations,  ancient  and 
modern,  far  different  lessons  are  taught  with  a  severe 
truth  and  force.  Those  lessons  instruct  them,  that 
energy  in  the  executive  is  a  leading  character  in  the 
definition  of  a  good  government.  It  is  essential  to  the 
protection  of  the  community  against  foreign  attacks. 
It  is  not  less  essential  to  the  steady  administration  of 
the  laws,  to  the  protection  of  property  against  those 
irregular  and  high-handed  combinations,  which  some- 
times interrupt  the  ordinary  course  of  justice,  and  to 
the  security  of  liberty  against  the  enterprises  and  as- 
saults of  ambition,  of  faction,  and  of  anarchy.  Every 
man  the  least  conversant  with  Roman  history  knows, 
how  often  that  republic  was  obliged  to  take  refuge  in 
the  absolute  power  of  a  single  man,  ynder  the  formida- 
ble name  of  a  dictator,  as  w^ell  against  the  intrigues  of 
ambitious  individuals,  aspiring  to  tyranny,  and  the  sedi- 
tions of  whole  classes  of  the  community,  threatening 
the  existence  of  the  government,  as  against  foreign 
enemies,  menacing  the  destruction  and  conquest  of  the 
state.  A  feeble  executive  implies  a  feeble  execution 
of  the  government.  A  feeble  execution  is  but  another 
phrase  for  a  bad  execution  ;  and  a  government  ill  ex- 
ecuted, whatever  may  be  its  theory,  must,  in  practice, 
be  a  bad  government. 


518         CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 

^  724.  The  ingredients,  which  constitute  energy  in 
the  executive,  are  unity,  duration,  an  adequate  provi- 
sion for  its  support,  and  competent  powers.  The  in- 
gredients, which  constitute  safety  in  a  republican  form 
of  government,  are  a  due  dependence  on  the  people, 
and  a  due  responsibility  to  the  people. 

^  725.  That  unity  is  conducive  to  energy  will 
scarcely  be  disputed.  Decision,  activity,  secresy,  and 
despatch  w^ill  generally  characterise  the  proceedings  of 
one  man  in  a  much  more  eminent  degree,  than  the 
proceedings  of  a  greater  number ;  and  in  proportion, 
as  the  number  is  increased,  these  qualities  will  be  di- 
minished. 

^  726.  This  unity  may  be  destroyed  in  two  ways ; 
first,  by  vesting  the  power  in  two  or  more  magistrates 
of  equal  dignity  ;  secondly,  by  vesting  it  ostensibly  in 
one  man,  subject,  however,  in  whole  or  in  part,  to  the 
control  and  advice  of  a  council.  Of  the  first,  the  two 
consuls  of  Rome  may  serve,  as  an  example  in  ancient 
times  ;  and  in  modern  times,  the  brief  and  hasty  history 
of  the  three  consuls  of  France,  during  its  shortlived  re- 
public. Of  the  latter,  several  states  in  the  Union  fur- 
nish examples,  as  some  of  the  colonies  did  before  the 
revolution.  Both  these  methods  of  destroying  the 
unity  of  the  executive  have  had  their  advocates. 
They  are  both  liable  to  similar,  if  not  to  equal  objec- 
tions. 

^  727.  But  independent  of  any  of  the  lights  derived 
from  history,  it  is  obvious,  that  a  division  of  the  execu- 
tive power  between  two  or  more  persons  must  always 
tend  to  produce  dissensions,  and  fluctuating  councils. 
Whenever  two  or  more  persons  are  engaged  in  any 
common  enterprise,  or  pursuit,  there  is  always  danger 
of  difference  of  opinion.     If  it  be  a  public  trust,  or  office, 


I 


CH.  XXXVI.]  EXECUTIVE UNITY.  519 

in  which  they  are  clothed  with  equal  dignity  and  au- 
thority, there  are  peculiar  dangers  arising  from  personal 
emulation,  or  personal  animosity  ;  from  superior  talents 
on  one  side,  encountering  strong  jealousies  on  the  oth- 
er ;  from  pride  of  opinion  on  one  side,  and  weak  devo- 
tion to  popular  prejudices  on  the  other;  from  the 
vanity  of  being  the  author  of  a  plan,  or  resentment  from 
some  imagined  slight  by  the  approval  of  that  of  another. 
From  these,  atid  other  causes  of  the  like  nature,  the 
most  bitter  rivalries  and  dissensions  often  spring.  When- 
ever these  happen,  they  lessen  the  respectability,  weak- 
en the  authority,  and  distract  the  plans  and  operations 
of  those  whom  they  divide.  The  wisest  measures 
are  thus  often  defeated,  or  delayed,  even  in  the  most 
critical  moments.  And  what  constitutes  even  a  greater 
evil,  the  community  often  becomes  split  up  into  rival 
factions,  adhering  to  the  different  persons,  who  com- 
pose the  magistracy ;  and  temporary  animosities  be- 
come thus  the  foundation  of  permanent  calamities  to 
the  state.  Indeed,  the  ruinous  effects  of  rival  factions 
in  free  states,  struggling  for  power,  have  been  the  con- 
stant theme  of  reproach  by  the  admirers  of  monarchy, 
and  of  regret  by  the  lovers  of  republics.  The  Guelphs 
and  the  Ghibelins,  the  white  and  the  black  factions,  have 
been  immortalized  in  the  history  of  the  Italian  states  ; 
and  they  are  but  an  epitome  of  the  same  unvarying 
scenes  in  all  other  republics. 

^  728.  Objections  of  a  like  nature  apply,  though  in 
some  respects  with  diminished  force,  to  the  scheme  of 
an  executive  council,  whose  constitutional  concurrence 
is  rendered  indispensable.  An  artful  cabal  in  that 
council  would  be  able  to  distract  and  enervate  the 
whole  public  councils.  And  even  without  such  a  cabal, 
the  mere  diversity  of  views  and  opinions  would  almost 


520  CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

always  mark  the  exercise  of  the  executive  authority 
with  a  spirit  of  habitual  feebleness  and  dilatoriness,  or  a 
degrading  inconsistency.  But  an  objection,  in  a  repub- 
lican government  quite  as  weighty,  is,  that  such  a  par- 
ticipation in  the  executive  power  has  a  direct  tendency 
to  conceal  faults,  and  destroy  responsibility.  Respon- 
sibility is  of  two  kinds,  to  censure,  and  to  punishment. 
The  first  is  the  more  important  of  the  two,  especially  in 
an  elective  government.  Men  in  public  trust  will  more 
ofcen  act  in  such  a  manner,  as  to  render  themselves  un- 
worthy of  public  favour,  than  to  render  themselves  liable 
to  legal  punishment.  But  the  multiplication  of  voices  in 
the  business  of  the  executive  renders  it  difficult  to  fix 
responsibility  of  either  kind  ;  for  it  is  perpetually  shifted 
from  one  to  another.  It  often  becomes  impossible 
amidst  mutual  accusations  to  determine,  upon  whom  the 
blame  ought  to  rest.  A  sense  of  mutual  impropriety 
sometimes  induces  the  parties  to  resort  to  plausible  pre- 
texts to  disguise  their  misconduct ;  or  a  dread  of  pub- 
lic responsibility  to  cover  up,  under  the  lead  of  some 
popular  demagogue,  their  own  faults  and  vacillations. — 
Thus,  a  council  often  becomes  the  means,  either  of 
shifting  off  all  effective  responsibility  from  the  chief 
magistrate,  or  of  intrigues  and  oppositions,  which  de- 
stroy his  power,  and  supplant  his  influence. 

§  729.  The  proper  conclusion  to  be  drawn  from 
these  considerations  is,  that  plurality  in  the  executive 
deprives  the  people  of  the  two  greatest  securities  for  the 
faithful  exercise  of  delegated  power.  First,  it  removes 
the  just  restraints  of  public  opinion ;  and,  secondly,  it 
diminishes  the  means,  as  well  as  the  power,  of  fixing 
responsibility  for  bad  measures  upon  the  real  authors. 

^  730.  The  question  as  to  the  unity  of  the  execu- 
tive being  disposed  of,  the  next  consideration  is,  as  to 


CH.  XXXVI.]  EXECUTIVE- DURATION  OF  OFFICE.       621 

the  proper  duration  of  his  term  of  office.  It  has  been 
already  mentioned,  that  duration  in  office  constitutes  an 
essential  requisite  to  the  energy  of  the  executive  de- 
partment. This  has  relation  to  two  objects ;  first,  the 
personal  firmness  of  the  chief  magistrate  in  the  employ- 
ment of  his  constitutional  powers  ;  and,  secondly,  the 
stability  of  the  system  of  administration,  which  may  have 
been  adopted  under  his  auspices.  With  regard  to  the 
first,  it  is  evident,  that  the  longer  the  duration  in  office, 
the  greater  will  be  the  probability  of  obtaining  so  im- 
portant an  advantage.  A  man  will  naturally  be  inter- 
ested in  whatever  he  possesses,  in  proportion  to  the 
firmness  or  precariousness  of  the  tenure,  by  which  he 
holds  it.  He  will  be  less  attached  to  what  he  holds  by 
a  momentary,  or  uncertain  title,  than  to  what  he  enjoys 
by  a  title  durable,  or  certain ;  and  of  course  he  will  be 
willing  to  risk  more  for  the  one,  than  for  the  other. 
This  remark  is  not  less  applicable  to  political  privilege, 
or  honour,  or  trust,  than  to  any  article  of  ordinary  prop- 
erty. A  chief  magistrate,  acting  under  the  conscious- 
ness, that  in  a  very  short  time  he  must  lay  down  office, 
will  be  apt  to  feel  himself  too  little  interested  in  it  to 
hazard  any'material  censure  or  perplexity  from  an  in- 
dependent exercise  of  his  powers,  or  from  those  ill  hu- 
mours, which  are  apt  at  times  to  prevail  in  all  govern- 
ments. If  the  case  should  be,  that  he  might,  notwith- 
standing, be  re-eligible,  his  wishes,  if  he  should  have 
any  for  office,  would  combine  with  his  fears  to  debase 
his  fortitude,  or  weaken  his  integrity,  or  enhance  his 
irresolution. 

§  731.  The  other  ground,  that  of  stability  in  the  sys- 
tem of  administration,  is  still  more  strikingly  connected 
with  duration  in  office.  Few  men  will  be  found  willing 
to  commit  themselves  to  a  course  of  policy,  whose  wis- 

Abr.  66 


522  CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 

dom  may  be  perfectly  clear  to  themselves,  if  they  can- 
not be  permitted  to  complete,  what  they  have  begun- 
Of  what  consequence  will  it  be  to  form  the  best  plans 
of  executive  administration,  if  they  are  perpetually  pass- 
ing into  new  hands,  before  they  are  matured,  or  may 
be  defeated  at  the  moment,  when  their  reasonableness 
and  their  value  cannot  be  understood,  or  reahzed  by 
the  public  ?  One  of  the  truest  rewards  to  patriots  and 
statesmen  is  the  consciousness,  that  the  objections  rais- 
ed against  their  measures  will  disappear  upon  a  fair 
trial ;  and  that  the  gratitude  and  affection  of  the  people 
will  follow  their  labours,  long  after  they  have  ceased  to 
be  actors  upon  the  public  scenes.  But  who  will  plant, 
when  he  can  never  reap  ?  Who  will  sacrifice  his  pres- 
ent ease,  and  reputation,  and  popularity,  and  encounter 
obloquy  and  persecution,  for  systems,  which  he  can 
neither  mould  so,  as  to  ensure  success,  nor  direct  so,  as 
to  justify  the  experiment  ? 

^  732.  The  natural  result  of  a  change  of  the  head 
of  the  government  will  be  a  change  in  the  course  of 
administration,  as  well  as  a  change  in  the  subordinate 
persons,  who  are  to  act  as  ministers  to  the  executive. 
A  successor  in  office  will  feel  little  sympathy  with 
the  plans  of  his  predecessor.  To  undo,  what  has  been 
done  by  the  latter,  will  be  supposed  to  give  proofs  of 
his  own  capacity  ;  and  will  recommend  him  to  all  those, 
who  were  adversaries  of  the  past  administration ;  and 
perhaps  will  constitute  the  main  grounds  of  elevating 
him  to  office.  Personal  pride,  party  principles,  and  an 
ambition  for  public  distinction  will  thus  naturally  prompt 
him  to  an  abandonment  of  old  schemes,  and  combine 
with  that  love  of  novelty  so  congenial  to  all  free  states,  to 
make  every  new  administration  the  founders  of  new 
systems  of  government. 


CH.  XXXVI.]  EXECUTIVE DURATION  OF  OFFICE.    523 

§  733.  It  is  observable,  that  the  period  actually 
fixed  is  intermediate  between  the  term  of  otfice  of  the 
senate,  and  that  of  the  house  of  representatives.  In  the 
course  of  one  presidential  term,  the  house  is,  or  may  be, 
twice  re-composed  ;  and  two-thirds  of  the  senate  chang- 
ed, or  re-elected.  So  far,  as  executive  influence  can  be 
presumed  to  operate  upon  either  branch  of  the  legisla- 
ture unfavourably  to  the  rights  of  the  people,  the  latter 
possess,  in  their  elective  franchise,  ample  means  of  re- 
dress. On  the  other  hand,  so  far,  as  uniformity  and 
stability  in  the  administration  of  executive  duties  are 
desirable,  they  are  in  some  measure  secured  by  the 
more  permanent  tenure  of  office  of  the  senate,  which 
will  check  too  hasty  a  departure  from  the  old  system, 
by  a  change  of  the  executive,  or  representative  branch 
of  the  government. 

§  734.  Hitherto  our  experience  has  demonstrated, 
that  the  period  is  not  found  practically  so  long,  as  to 
create  danger  to  the  people,  or  so  short,  as  to  take 
away  a  reasonable  independence  and  energy  from  the 
executive.  Still  it  cannot  be  disguised,  that  suflicient 
time  has  scarcely  yet  elapsed  to  enable  us  to  pronounce 
a  decisive  opinion  upon  the  subject ;  since  the  executive 
has  generally  acted  with  a  majority  of  the  nation ;  and 
in  critical  times  he  has  been  sustained  by  the  force  of 
that  majority  in  strong  measures,  and  in  times  of  more 
tranquillity,  by  the  general  moderation  of  the  policy  of 
his  administration. 

^  735.  Another  question,  connected  with  the  dura- 
tion of  office  of  the  president,  was  much  agitated  in  the 
convention,  and  has  often  since  been  a  topic  of  serious 
discussion  ;  and  that  is,  whether  he  should  be  re-eligi-^ 
ble  to  office.  In  support  of  the  opinion,  that  the  presi- 
dent ought  to  be  ineligible  after  one  period  of  office,  it 


524  CONSTITUTION  OF  THE  U.  STATES.     [bOOK  III. 

was  urged,  that  the  return  of  public  officers  into  the 
mass  of  the  common  people,  Vthere  they  would  feel  the 
tone,  which  they  had  given  to  the  administration  of  the 
laws,  was  the  best  security  the  public  could  have  for 
their  good  behaviour.  It  would  operate  as  a  check 
upon  the  restlessness  of  ambition,  and  at  the  same  time 
promote  the  independence  of  the  executive.  It  would 
prevent  him  from  a  cringing  subserviency  to  procure  a 
re-election  ;  or  from  a  resort  to  corrupt  intrigues  for  the 
maintenance  of  his  power.  And  it  was  even  added  by 
some,  whose  imaginations  were  continually  haunted  by 
terrors  of  all  sorts  from  the  existence  of  any  powers  in 
the  national  government,  that  the  re-eligibility  of  the 
executive  would  furnish  an  inducement  to  foreign  gov- 
ernments to  interfere  in  our  elections,  and  would  thus 
inflict  upon  us  all  the  evils,  which  had  desolated^  and 
betrayed  Poland. 

§  736.  In  opposition  to  these  suggestions  it  was 
stated,  that  one  ill  effect  of  the  exclusion  would  be  a 
diminution  of  the  inducements  to  good  behaviour. 
There  are  few  men,  who  would  not  feel  much  less  zeal 
in  the  discharge  of  a  duty,  when  they  were  conscious, 
that  the  advantage  of  the  station,  with  which  it  is  con- 
nected, must  be  rehnquished  at  a  determinate  period, 
than  when  they  were  permitted  to  entertain  a  hope  of 
obtaining  by  their  merit  a  continuance  of  it.  A  desire 
of  reward  is  one  of  the  strongest  incentives  of  human 
conduct ;  and  the  best  security  for  the  fidelity  of  man- 
kind is  to  make  interest  coincide  with  duty.  Another 
ill  effect  of  the  exclusion  would  be  the  temptation  to 
sordid  views,  to  peculation,  to  the  corrupt  gratification 
of  favourites,  and  in  some  instances  to  usurpation.  A 
selfish  or  avaricious  executive  might,  under  such  cir- 
cumstances, be  disposed  to  make  the  most  he  could  for 


CH.  XXXVF.]    EXECUTIVE RE-ELIGIBILITY.  525 

himself,  and  his  friends,  and  partisans,  during  his  brief 
continuance  in  office,  and  to  introduce  a  system  of  offi- 
cial patronage  aud  emoluments,  at  war  with  the  public 
interests,  but  well  adapted  to  his  own.  If  he  were  vain 
and  ambitious,  as  well  as  avaricious  and  selfish,  the 
transient  possession  of  his  honors  w^ould  depress  the 
former  passions,  and  give  new  impulses  to  the  latter. 
He  would  dread  the  loss  of  gain  more,  than  the  loss  of 
fame  ;  since  the  power  must  drop  from  his  hands  too 
soon  to  ensure  any  substantial  addition  to  his  reputa- 
tion. On  the  other  hand,  his  very  ambition,  as  well  as 
his  avarice,  might  tempt  him  to  usurpation ;  since  the 
chance  of  impeachment  would  scarcely  be  worthy  of 
thought ;  and  the  present  power  of  serving  friends 
might  easily  surround  him  with  advocates  for  every 
stretch  of  authority,  which  would  flatter  his  vanity,  or 
administer  to  their  necessides. 

^  737.  Another  ill  effect  of  the  exclusion  would  be, 
depriving  the  community  of  the  advantage  of  the  expe- 
rience, gained  by  an  able  chief  magistrate  in  the  exer- 
cise of  office.  Experience  is  the  parent  of  wisdom. 
And  it  would  seem  almost  absurd  to  say,  that  it  ought 
systematically  to  be  excluded  from  the  execuUve  office. 
It  would  be  equivalent  to  banishing  merit  from  the 
public  councils,  because  it  had  been  tried.  What  could 
be  more  strange,  than  to  declare,  at  the  moment,  when 
wisdom  was  acquired,  that  the  possessor  of  it  should  no 
longer  be  enabled  to  use  it  for  the  very  purposes,  for 
which  it  was  acquired  ? 

'  ^  738.  Another  ill  effect  of  the  exclusion  would  be, 
that  it  might  banish  men  from  the  station  in  certain 
emergencies,  in  which  their  services  might  be  eminent- 
ly useful,  antl  indeed  almost  indispensable  for  the  safety 
of  their  country.     There  is  no  nation,  which  has  not,  at 


526         CONSTITUTION  OF  THE   (J.  STATES.        [eOOK  III. 

some  period  or  other  in  its  history,  felt  an  absolute  ne- 
cessity of  the  services  of  particular  men  in  particular 
stations ;  and,  perhaps  it  is  not  too  much  to  say,  as  vital 
to  the  preservation  of  its  political  existence.  In  a  time 
of  war,  or  other  pressing  calamity,  the  very  confidence 
of  a  nation  in  the  tried  integrity  and  ability  of  a  single 
man  may  of  itself  ensure  a  triumph.  Is  it  wise  to  sub- 
stitute in  such  cases  inexperience  for  experience,  and 
to  set  afloat  public  opinion,  and  change  the  settled  course 
of  administration  ?  One  should  suppose,  that  it  would 
be  sufficient  to  possess  the  right  to  change  a  bad  mag^ 
istrate,  without  making  the  singular  merit  of  a  good  one 
the  very  ground  of  excluding  him  from  office. 

§  739.  It  was  added,  that  the  advantages  proposed 
by  the  exclusion,  (1.)  greater  independence  in  the  ex- 
ecutive, (2.)  greater  security  to  the  people,  were  not 
well  founded.  The  former  could  not  be  attained  in  any 
moderate  degree,  unless  the  exclusion  was  made  per- 
petual. And,  if  it  were,  there  might  be  many  motives 
to  induce  the  executive  to  sacrifice  his  independence  to 
friends,  to  partisans,  to  selfish  objects,  and  private  gain, 
to  the  fear  of  enemies,  and  the  desire  to  stand  well  with 
majorities.  As  to  the  latter  supposed  advantage,  the 
exclusion  would  operate  no  check  upon  a  man  of  irreg- 
ular ambition,  or  corrupt  principles,  and  against  such 
men  alone  could  the  exclusion  be  important.  In  truth, 
such  men  would  easily  find  means  to  cover  up  their 
usurpations  and  dishonesty  under  fair  pretensions,  and 
mean  subserviency  to  popular  prejudices.  They  would 
easily  delude  the  people  into  a  belief,  that  their  acts 
were  constitutional,  because  they  were  in  harmony  with 
the  public  wishes,  or  held  out  some  specious,  but  false 
projects  for  the  public  good. 


CH.  XXXVI.]    EXECUTIVE VICE-PRESIDENT.  527 

^  740.  Still  it  must  be  confessed,  that  where  the 
duration  is  for  a  considerable  length  of  time,  the  right 
of  re-election  becomes  less  important,  and  perhaps  less 
safe  to  the  public.  A  president  chosen  for  ten  years 
might  be  made  ineligible  with  far  less  impropriety,  than 
one  chosen  for  four  years.  And  a  president  chosen 
for  twenty  years  ought  not  to  be  again  eligible,  upon 
the  plain  ground,  that  by  such  a  term  of  office  his  re- 
sponsibility would  be  greatly  diminished,  and  his  means 
of  influence  and  patronage  immensely  increased,  so  as 
to  check  in  a  great  measure  the  just  expression  of 
public  opinion,  and  the  free  exercise  of  the  elective 
franchise. 

§  741.  The  remaining  part  of  the  clause  respects 
the  Vice-President.  If  such  an  officer  was  to  be  cre- 
ated, it  is  plain,  that  the  duration  of  his  office  should 
be  co-extensive  with  that  of  the  president.  Indeed,  as 
we  shall  immediately  see,  the  scheme  of  the  govern- 
ment necessarily  embraced  it ;  for  when  it  was  decid- 
ed, that  two  persons  were  to  be  voted  for,  as  president, 
it  w^as  decided,  that  he,  who  had  the  greatest  number 
of  votes  of  the  electors,  after  the  person  chosen  as  pres- 
ident, should  be  vice-president.  The  principal  ques- 
tion, therefore,  was,  whether  such  an  officer  ought  to  be 
created. 

^  742.  The  reasons  in  favour  of  the  appointment 
were  as  follows.  It  was  seen,  that  a  presiding  officer 
must  be  chosen  for  the  senate,  where  all  the  states  were 
equally  represented,  ai;id  where  an  extreme  jealousy 
might  naturally  be  presumed  to  exist  of  the  preponder- 
ating influence  of  any  one  state.  If  a  member  of  the 
senate  were  appointed,  either  the  state  would  be  de- 
prived of  one  vote,  or  would  enjoy  a  double  vote  in 
case  of  an  equality  of  votes,  or  there  would  be  a  tie. 


528  CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 

and  no  decision.  Each  of  these  alternatives  was 
equally  undesirable,  and  might  lay  the  foundation  of 
great  practical  inconveniences.  An  officer,  therefore, 
chosen  by  the  whole  Union,  would  be  a  more  suitable 
person  to  preside,  and  give  a  casting  vote,  since  he 
would  be  more  free,  than  any  member  of  the  senate, 
from  local  attachments,  and  local  interests ;  and  being 
the  representative  of  the  Union,  would  naturally  be 
induced  to  consult  the  interests  of  all  the  states. 
Having  only  a  casting  vote,  his  influence  could  only 
operate  exactly,  w^hen  most  beneficial  ;  that  is,  to  pro- 
cure a  decision.  A  still  more  important  consideration 
is  the  necessity  of  providing  some  suitable  person  to 
perform  the  executive  functions,  when  the  president 
is  unable  to  perform  them,  or  is  removed  from  of- 
fice. Every  reason,  which  recommends  the  mode  of 
election  of  the  president,  prescribed  by  the  constitu- 
tion, with  a  view  either  to  dignity,  independence,  or 
personal  qualifications  for  office,  applies  with  equal 
force  to  the  appointment  of  his  substitute.  ,He  is  to 
perform  the  same  duties,  and  to  possess  the  same 
rights  ;  and  it  seems,  if  not  indispensable,  at  least  pe- 
culiarly proper,  that  the  choice  of  the  person,  who 
should  succeed  to  the  executive  functions,  should  be- 
long to  the  people  at  large,  rather  than  to  a  select  body 
chosen  for  another  purpose.  If  (as  was  suggested) 
the  president  of  the  senate,  chosen  by  that  body,  might 
have  been  designated,  as  the  constitutional  substitute  ; 
it  is  by  no  means  certain,  that  he  would  either  possess 
so  high  qualifications,  or  enjoy  so  much  public  confi- 
dence, or  feel  so  much  responsibility  for  his  conduct,  as 
a  vice-president  selected  directly  by  and  from  the  peo- 
ple. The  president  of  the  senate  would  generally  be 
selected  from  other  motives,  and  with  reference  tooth- 


CH.  XXXVI.]  EXECUTIVE -CHOICE  OF  PRESIDENT.    529 

er  qualifications,  than  what  ordinarily  belonged  to  the 
executive  department.  His  political  opinions  might  be 
in  marked  contrast  with  those  of  a  majority  of  the  na- 
tion ;  and  while  he  might  possess  a  just  influence  in  the 
senate,  as  a  presiding  officer,  he  might  be  deemed 
wholly  unfit  for  the  various  duties  of  the  chief  execu- 
tive magistrate.  In  addition  to  these  considerations, 
there  was  no  novelty  in  the  appointment  of  such  an 
officer  for  similar  purposes  in  some  of  the  state  govern- 
ments ;  and  it  therefore  came  recommended  by  expe- 
rience, as  a  safe  and  useful  arrangement,  to  guard  the 
people  against  the  inconveniences  of  an  interregnum  in 
the  government,  or  a  devolution  of  power  upon  an  offi- 
cer, who  was  not  their  choice,  and  might  not  possess 
their  confidence. 

§  743.  The  next  clause  embraces  the  mode  of  elec- 
tion of  the  President  and  Vice-President ;  and  although 
"  it  has  been  repealed  by  an  amendment  of  the  constitu- 
tion, (as  will  be  hereafter  shown,)  yet  it  still  deserves 
consideration,  as  a  part  of  the  original  scheme,  and  more 
especially,  as  very  grave  doubts  have  been  entertained, 
whether  the  substitute  is  not  inferior  to  it  in  wisdom  and 
convenience. 

^  744.  The  clause  is  as  follows :  "  Each  state  shall 
"  appoint  in  such  manner,  as  the  legislature  thereof  may 
"  direct,  a  number  of  electors,  equal  to  the  whole  num- 
"  ber  of  senators  and  representatives,  to  which  the 
"state  may  be  entitled  in  the  congress.  But  no  sena- 
"  tor,  or  representative,  or  person  holding  an  office  of 
"trust  or  profit  under  the  United  States,  shall  be  ap- 
"  pointed  an  elector. 

"  The  electors  shall  meet  in  their  respective  states, 
"  and  vote  by  ballot  for  two  persons,  of  whom  one  at 
"  least  shall  not  be  an  inhabitant  of  the  same  state  with 

Abr.  67 


530  CONSTITUTION  OF  THE  V.  STATES.     [bOOK  III, 

"  themselves.  And  they  shall  make  a  list  of  all  the 
"  persons  voted  for,  and  of  the  number  of  votes  for  each ; 
"  which  list  they  shall  sign  and  certify,  and  transmit, 
"  sealed,  to  the  seat  of  the  government  of  the  United 
"  States,  directed  to  the  president  of  the  senate.  The 
**  president  of  the  senate  shall,  in  the  presence  of  the 
"  senate  and  house  of  representatives,  open  all  the  cer- 
"  tificates,  and  the  votes  shall  then  be  counted.  The 
"  person  having  the  greatest  number  of  votes  shall  be 
"  the  president,  if  such  number  be  a  majority  of  the 
"  vs^hole  number  of  electors  appointed  ;  and  if  there  be 
"  more  than  orje,  who  have  such  majority,  and  have  an 
"  equal  number  of  votes,  then  the  house  of  representa- 
"  tives  shall  immediately  choose  by  ballot  one  of  them 
"  for  president ;  and  if  no  person  have  a  majority,  then 
"from  the  five  highest  on  the  hst  the  said  house  shall 
"  in  like  manner  choose  the  president.  But  in  choos- 
"ing  the  president,  the  votes  shall  be  taken  by  states, 
**  the  representation  from  each  state  having  one  vote ; 
"a  quorum  for  this  purpose  shall  consist  of  a  member 
"  or  members  from  two-thirds  of  the  states,  and  a  ma- 
"jority  of  all  the  states  shall  be  necessary  to  a  choice. 
"  In  every  case,  after  the  choice  of  the  president,  the 
"person  having  the  greatest  number  of  votes  of  the 
"electors  shall  be  the  vice-president.  But  if  there 
"  should  remain  two  or  more,  who  have  equal  votes, 
"  the  senate  shall  choose  from  them  by  ballot  the  vice- 
"  president." 

^  745.  Assuming  that  the  choice  ought  not  to  be  con- 
fided to  the  national  legislature,  (which  was  at  one  time 
proposed,  and  after  deliberation  rejected,)  there  remain- 
ed various  other  modes,  by  which  it  might  be  effected ; 
by  the  people  directly ;  by  the  state  legislatures ;  or  by 
electors,  chosen  by  the  one,  or  the  other.     The  latter 


CH.  XXXVI.]  EXECUTIVE -CHOICE  OF  PRESIDENT.    631 

mode  was  deemed  most  advisable;  and  the  reasoning,  by 
which  it  was  supported,  was  to  the  following  effect.  The 
immediate  election  should  be  made  by  men,  the  most 
capable  of  analyzing  the  quaUties  adapted  to  the  station, 
and  acting  under  circumstances  favorable  to  delibera- 
tion, and  to  a  judicious  combination  of  all  the  induce- 
ments, which  ought  to  govern  their  choice.     A  small 
number  of  persons,  selected  by  their  fellow  citizens 
from  the  general  mass  for  this  special  object,  would  be 
most  likely  to  possess  the  information,  and  discernment, 
and  independence,  essential"  for  the  proper  discharge  of 
the  duty.     It  is  also  highly  important  to  afford  as  little 
opportunity,  as  possible,  to  tumult  and  disorder.     These 
evils  are  not  unlikely  to  occur  in  the  election  of  a  chief 
magistrate  directly  by  the  people,  considering  the  strong 
excitements  and  interests,  which  such  an  occasion  may 
naturally  be  presumed  to  produce.      The  choice  of  a 
number  of  persons,  to  form  an  intermediate  body  of 
electors,  would  be  far  less  apt  to  convulse  the  commu- 
nity with  any  extraordinary  or  violent  movements,  than 
the  choice  of  one,  who  was  himself  the  final  object  of 
the  public  wishes.     And  as  the  electors  chosen  in  each 
state  are  to  assemble,  and  vote  in  the  state,  in  which 
they  are  chosen,  this  detached  and  divided  situation 
would  expose  them  much  less  to  heats  and  ferments, 
which  might  be  communicated  from  them  to  the  people, 
than  if  they  were  all  convened  at  one  time  in  one  place. 
The  same  circumstances  would  naturally  lessen  the 
dangers  of  cabal,  intrigue,  and  corruption,  especially,  if 
congress  should,  as  they  undoubtedly  would,  prescribe 
the  same  day  for  the  choice  of  the  electors,  and  for 
giving  their  votes,  throughout  the  United  States.     The 
scheme,   indeed,   presents    every    reasonable    guard 
against  these   fatal   evils   to  republican  governments. 


532  CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

The  appointment  of  the  president  is  not  made  to  de- 
pend upon  any  pre-existing  body  of  men,  who  might 
be  tampered  with  beforehand  to  prostitute  their  votes  ; 
but  is  delegated  to  persons  chosen  by  the  immediate 
act  of  the  people,  for  that  sole  and  temporary  purpose. 
All  those  persons,  who,  from  their  situation,  might  be 
suspected  of  too  great  a  devotion  to  the  president  in 
office,  such  as  senators,  and  representatives,  and  other 
persons  holding  offices  of  trust  or  profit  under  the  Unit- 
ed States,  are  excluded  from  eligibility  to  the  trust. 
Thus,  without  corrupting  the  body  of  the  people,  the 
immediate  agents  in  the  election  may  fairly  be  presum- 
ed to  enter  upon  their  duty  free  from  any  sinister  bias. 
Their  transitory  existence  and  dispersed  situation  would 
present  formidable  obstacles  to  any  corrupt  combina- 
tions ;  and  time,  as  well  as  means,  would  be  wanting  to 
accomplish,  by  bribery  or  intrigue  of  any  considerable 
number,  a  betrayal  of  their  duty.  The  president,  too, 
who  should  be  thus  appointed,  would  be  far  more  inde- 
pendent, than  if  chosen  by  a  legislative  body,  to  whom 
he  might  be  expected  to  make  correspondent  sacrifices, 
to  gratify  their  wishes,  or  reward  their  services.  And 
on  the  other  hand,  being  chosen  by  the  voice  of  the 
people,  his  gratitude  would  tako  the  natural  direction, 
and  sedulously  guard  their  rights. 

^  746.  The  other  parts  of  the  scheme  are  no  less 
entitled  to  commendation.  The  number  of  electors  is 
equal  to  the  number  of  senators  and  representatives  of 
each  state  ;  thus  giving  to  each  state  as  virtual  a  repre- 
sentation in  the  electoral  colleges,  as  that,  which  it  en- 
joys in  congress.  The  votes,  when  given,  are  to  be 
transmitted  to  the  seat  of  the  national  government,  and 
there  opened  and  counted  in  the  presence  of  both 
houses.      The  person,  having  a  majority  of  the  whole 


CH.  XXXVI.]  EXECUTIVE -CHOICE  OF  PRESIDENT.    533 

number  of  votes,  is  to  be  president.  But,  if  no  one  of 
the  candidates  has  such  a  majority,  then  the  house  of 
representatives,  the  popular  branch  of  the  government, 
is  to  elect,  from  the  five  highest  on  the  list,  the  person, 
whom  they  may  deem  best  qualified  for  the  office,  each 
state  having  one  vote  in  the  choice.  The  person,  who 
has  the  next  highest  number  of  votes  nfter  the  choice 
of  president,  is  to  be  vice-president.  But,  if  two  or 
more  shall  have  equal  votes,  the  senate  are  to  choose 
the  vice-president.  Thus,  the  ultimate  functions  are  to 
be  shared  alternately  by  the  senate  and  representatives 
in  the  organization  of  the  executive  department. 

^  747.  The  principal  difficulty,  which  has  been  felt 
in  the  mode  of  election,  is  the  constant  tendency,  from 
the  number  of  candidates,  to  bring  the  choice  into  the 
house  of  representatives.  This  has  already  occurred 
twice  in  the  progress  of  the  government ;  and  in  the 
future  there  is  every  probability  of  a  far  more  frequent 
occurrence.  This  was  early  foreseen ;  and,  even  in 
one  of  the  state  conventions,  a  most  distinguished  states- 
man, and  one  of  the  framers  of  the  constitution,  admit- 
ted, that  it  would  probably  be  found  impracticable  to 
elect  a  president  by  the  immediate  suffrages  of  the 
people ;  and  that  in  so  large  a  country  many  persons 
would  probably  be  voted  for,  and  that  the  lowest  of  the 
five  highest  on  the  fist  might  not  have  an  inconsidera- 
ble number  of  votes.  It  cannot  escape  the  discern- 
ment of  any  attentive  observer,  that  if  the  house  of 
representatives  is  often  to  choose  a  president,  the 
choice  will,  or  at  least  may,  be  influenced  by  many 
motives,  independent  of  his  merits  and  qualifications. 
There  is  danger,  that  intrigue  and  cabal  may  mix  in 
the  rivalries  and  strife.  And  the  discords,  if  not 
the  corruptions,  generated  by  the  occasion,  will  proba- 


534     CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

bly  long  outlive  the  immediate  choice,  and  scatter  their 
pestilential  influences  over  all  the  great  interests  of  the 
country.  One  fearful  crisis  was  passed  in  the  choice 
of  Mr.  Jefferson  over  his  competitor,  Mr.  Burr,  in  1801, 
which  threatened  a  dissolution  of  the  government,  and 
put  the  issue  upon  the  tried  patriotism  of  one  or  two 
individuals,  who  yielded  from  a  sense  of  duty  their 
preference  of  the  candidate,  generally  supported  by  their 
friends. 

^  748.  The  issue  of  the  contest  of  1801  gave  rise 
to  an  amendment  of  the  constitution  materially  changing 
in  several  respects,  the  mode  of  election  of  president. 
In  the  first  place  it  provides,  that  the  ballots  of  the  elec- 
tors shall  be  separately  given  for  president  and  vice- 
president,  instead  of  one  ballot  for  two  persons,  as 
president ;  that  the  vice-president  (like  the  president) 
shall  be  chosen  by  a  majority  of  the  whole  number  of 
electors  appointed  ;  that  the  number  of  candidates,  out 
of  whom  the  selection  of  president  is  to  be  made  by 
the  house  of  representatives,  shall  be  three,  instead  of 
five ;  that  the  senate  shall  choose  the  vice-president 
from  the  two  highest  numbers  on  the  list ;  and  that,  if 
no  choice  is  made  of  president  before  the  fourth  of 
March  following,  the  vice-president  shall  act  as  president. 

^  749.  The  amendment  was  proposed  in  October, 
1803,  and  was  ratified  before  September,  1804,  and  is 
in  the  following  terms. 

"  The  electors  shall  meet  in  their  respective  states, 
«  and  vote  by  ballot  for  president  and  vice-president, 
« one  of  whom,  at  least,  shall  not  be  an  inhabitant  of 
"  the  same  state  with  themselves  ;  they  shall  name  in 
"  their  ballots  the  person  voted  for  as  president,  and  in 
«  distinct  ballots  the  person  voted'for  as  vice-president ; 
«  and  they  shall  make  distinct  lists  of  all  persons  voted 


CH.  XXXVI.]  EXECUTIVE -CHOICE  OF  PRESIDENT.    536 

"  for  as  president,  and  of  all  persons  voted  for  as  vice- 
"  president,  and  of  the  number  of  votes  for  each  ;  which 
"  lists  they  shall  sign  and  certify,  and  transmit  sealed 
"to  the  seat  of  government  of  the  United  States; 
"  directed  to  the  president  of  the  senate.  The  presi- 
"  dent  of  the  senate  shall,  in  the  presence  of  the  senate 
"  and  house  of  representatives,  open  all  the  certificates, 
"  and  the  votes  shall  then  be  counted.  The  person  hav- 
"  ing  the  greatest  number  of  votes  for  president  shall 
"  be  the  president,  if  such  number  be  a  majority  of  the 
"  whole  number  of  electors  appointed  ;  and  if  no  per- 
"  son  have  such  majority,  then  from  the  persons  having 
"  the  highest  numbers,  not  exceeding  three,  on  the  list 
"  of  those  voted  for  as  president,  the  house  of  repre- 
"sentatives  shall  choose  immediately,  by  ballot,  the 
"president.  But  in  choosing  the  president,  the  votes 
"  shall  be  taken  by  states,  the  representation  from  each 
"state  having  one  vote;  a  quorum  for  this  purpose 
"shall  consist  of  a  member,  or  members,  from  two- 
"  thirds  of  the  states ;  and  a  majority  of  all  the  states 
"  shall  be  necessary  to  a  choice.  And  if  the  house  of 
"  representatives  shall  not  choose  a  president,  whenever 
"  the  right  of  choice  shall  devolve  upon  them,  before 
"  the  fourth  day  of  March  next  following,  then  the  vice- 
"  president  shall  act  as  president,  as  in  the  case  of  the 
"  death  or  other  constitutional  disabiUty  of  the  presi- 
"  dent. 

"  The  person,  having  the  greatest  number  of  votes 
"  as  vice-president,  shall  be  the  vice-president,  if  such 
"number  be  a  majority  of  the  whole  number  of  elec- 
"  tors  appointed ;  and  if  no  person  have  a  majority, 
"  then  from  the  two  highest  numbers  on  the  list,  the 
"  senate  shall  choose  the  vice-president ;  a  quorum  for 
"  the  purpose  shall  consist  of  two-thirds  of  the  whole 


536  CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 

"number  of  senators,   and   a  majority   of  the  whole 
"number  shall  be  necessary  to  a  choice. 

"But  no  person,  constitutionally  ineligible  to  the 
"office  of  president,  shall  be  eligible  to  that  of  vice- 
"  president  of  the  United  States." 

§  750.  This  amendment  has  alternately  been  the 
subject  of  praise  and  blame,  and  experience  alone  can 
decide,  whether  the  changes  proposed  by  it  are  in  all 
respects  for  the  better,  or  the  worse.  In  some  respects 
it  is  a  substantial  improvement.  In  the  first  place, 
under  the  original  mode,  the  senate  was  restrained 
from  acting,  until  the  house  of  representatives  had  made 
their  selection,  which,  if  parties  ran  high,  might  be 
considerably  delayed.  By  the  amendment  the  senate 
may  proceed  to  a  choice  of  the  vice-president,  imme- 
diately on  ascertaining  the  returns  of  the  votes.  In 
the  next  place,  under  the  original  mode,  if  no  choice 
should  be  made  of  a  president  by  the  house  of  repre- 
sentatives until  after  the  expiration  of  the  term  of  the 
preceding  officer,  there  would  be  no  person  to  perform 
the  functions  of  the  office,  and  an  interregnum  would 
ensue,  and  a  total  suspension  of  the  powers  of  gov- 
ernment. By  the  amendment,  the  new  vice-president 
would  in  such  case  act  as  president.  By  the  original 
mode,  the  senate  are  to  elect  the  vice-president  by 
ballot ;  by  the  amendment,  the  mode  of  choice  is  left 
open,  so  that  it  may  be  viva  voce.  Whether  this  be 
an  improvement,  or  not,  may  be  doubted. 

^751.  On  the  other  hand,  the  amendment  has 
certainly  greatly  diminished  the  dignity  and  importance 
of  the  office  of  vice-president.  Though  the  duties 
remain  the  same,  he  is  no  longer  a  competitor  for  the 
presidency,  and  selected,  as  i)ossessing  equal  merit, 
talents,  and   qualifications,  with   the   other  candidate. 


CH.  XXXVI.]  EXECUTIVE -CHOICE  OF  PRESIDENT.    537 

As  every  state  was  originally  compelled  to  vote  for  two 
candidates  (one  of  whom  did  not  belong  to  the  state) 
for  the  same  office,  a  choice  was  fairly  given  to  all  other 
states  to  select  between  them ;  thus  excluding  the 
absolute  predominance  of  any  local  interest,  or  local 
pardality. 

^  752.  It  is  obversable,  that  the  language  of  the 
constitution  is,  that  "  each  state  shall  appoint  in  such 
"manner,  as  the  legislature  thereof  may  direct,"  the 
number  of  electors,  to  which  the  state  is  entitled.  Un- 
der this  authority  the  appointment  of  electors  has  been 
variously  provided  for  by  the  state  legislatures.  In 
some  states  the  legislature  have  directly  chosen  the 
electors  by  themselves  ;  in  others  they  have  been  cho- 
sen by  the  people  by  a  general  ticket  throughout  the 
whole  state ;  and  in  others  by  the  people  in  electoral 
districts,  fixed  by  the  legislature,  a  certain  number  of 
electors  being  apportioned  to  each  district.  No  ques- 
tion has  ever  arisen,  as  to  the  consdtudonality  of  either 
mode,  except  that  of  a  direct  choice  by  the  legislature. 
But  this,  though  often  doubted  by  able  and  ingenious 
minds,  has  been  firmly  established  in  practice,  ever 
since  the  adoption  of  the  constitution,  and  does  not 
now  seem  to  admit  of  controversy,  even  if  a  suitable 
tribunal  existed  to  adjudicate  upon  it.  At  present,  in 
nearly  all  the  states,  the  electors  are  chosen  either  by 
the  people  by  a  general  ticket,  or  by  the  state  legis- 
lature. The  choice  in  districts  has  been  gradually 
abandoned;  and  is  now  persevered  in,  but  by  two 
states.  The  inequality  of  this  mode  of  choice,  unless 
it  should  become  general  throughout  the  Union,  is 
so  obvious,  that  it  is  rather  matter  of  surprise,  that  it 
should  not  long  since  have  been  wholly  abandoned.  In 
case  of  any  party  divisions  in  a  state,  it  may  neutralize 

Abr.  68 


638  CONSTITUTION  OF  THE  U.  STATES.     [bOOK  III. 

its  whole  vote,  while  all  the  other  states  give  an  un- 
broken electoral  vote.  On  this  account,  and  for  the 
sake  of  uniformity,  it  has  been  thought  desirable  by 
many  statesmen  to  have  the  constitution  amended  so,  as 
to  provide  for  an  uniform  mode  of  choice  by  the  people. 

§  753.  The  remaining  part  of  the  clause,  which 
precludes  any  senator,  representative,  or  person  hold- 
ing an  office  of  trust  or  profit  under  the  United  States, 
from  being  an  elector,  has  been  already  alluded  to,  and 
requires  Httle  comment.  The  object  is,  to  prevent 
persons,  holding  public  stations  under  the  government 
of  the  United  States,  from  any  direct  influence  in  the 
choice  of  a  president.  In  respect  to  persons  holding 
office,  it  is  reasonable  to  suppose,  that  their  partialities 
would  all  be  in  favour  of  the  re'-election  of  the  actual 
incumbent,  and  they  might  have  strong  inducements 
to  exert  their  official  influence  in  the  electoral  college. 
In  respect  to  senators  and  representatives,  there  is  this 
additional  reason  for  excluding  them,  that  they  would  be 
already  committed  by  their  vote  in  the  electoral  col- 
lege ;  and  thus,  if  there  should  be  no  election  by  the 
people,  they  could  not  bring  to  the  final  vote  either  the 
impartiality,  or  the  independence,  which  the  theory  of 
the  constitution  contemplates. 

^  754.  The  next  clause  is,  "  The  congress  may 
"  determine  the  time  of  choosing  the  electors,  and  the 
"  day,  on  which  they  shall  give  their  votes,  which  day 
"  shall  be  the  same  throughout  the  United  States." 

^  755.  The  propriety  of  this  power  would  seem  to 
be  almost  self-evident.  Every  reason  of  public  policy 
and  convenience  seems  in  favour  of  a  fixed  time  of 
givino:  the  electoral  votes,  and  that  it  should  be  the 
same  throughout  the  Union.  Such  a  measure  is  calcu- 
lated to  repress  political   intiigues    and  speculations, 


CH.   XXXVI.]    EXECUTIVE TIME  OF  ELECTING.       539 

by  rendering  a  combination  among  the  electoral  col- 
leges, as  to  their  votes,  if  not  utterly  impracticable,  at 
least  very  diificult;  and  thus  secures  the  people  against 
those  ready  expedients,  which  corruption  never  f?iils  to 
employ  to  accomplish  its  designs.  The  arts  of  ambi- 
tion are  thus  in  some  degree  checked,  and  the  inde- 
pendence of  the  electors  against  external  influence  in 
some  degree  secured.  This  power,  however,  did  not 
escape  objection  in  the  general,  or  the  state  conventions, 
though  the  objection  was  not  extensively  insisted  on. 

§  756.  In  pursuance  of  the  authority  given  by  this 
clause,  congress,  in  1792,  passed  an  act  declaring,  that 
the  electors  shall  be  appointed  in  each  state  within 
thirty -four  days,  preceding  the  first  Wednesday  in  De- 
cember in  every  fourth  year,  succeeding  the  last  elec- 
tion of  president,  according  to  the  apportionment  of 
representatives  and  senators  then  existing.  The  elec- 
tors chosen  are  required  to  meet  and  give  their  votes  on 
the  said  first  Wednesday  of  December,  at  such  place  in 
each  state,  as  shall  be  directed  by  the  legislature  there- 
of. They  are  then  to  make  and  sign  three  certificates 
of  all  the  votes  by  them  given,  and  to  seal  up  the  same, 
certifying  on  each,  that  a  fist  of  the  votes  of  such  state 
for  president  and  vice-president  is  contained  therein, 
and  are  to  appoint  a  person  to  take  charge  of,  and  deUver, 
one  of  the  same  certificates  to  the  president  of  the  senate 
at  the  seat  of  government,  before  the  first  Wednesday 
of  January  then  next  ensuing ;  another  of  the  certifi- 
cates is  to  be  forwarded  forthwith  by  the  post-oflSce  to 
the  president  of  the  senate  at  the  seat  of  government ; 
and  the  third  is  to  be  delivered  to  the  judge  of  the  dis- 
trict, in  which  the  electors  assembled.  Other  auxiliary 
provisions  are  made  by  the  same  act  for  the  due  trans- 
mission and  preservation  of  the  electoral  votes,  and 


540  CONSTITUTION  OF  THE  U.  STATES.      [bOOK  IIJ. 

authenticating  the  appointment  of  the  electors  The 
president's  term  of  otfice  is  also  declared  to  commence 
on  the  fourth  day  of  March  next  succeeding  the  day, 
on  which  the  votes  of  the  electors  shall  be  given. 

^  757.  The  next  clause  respects  the  qualifications  of 
the  president  of  the  United  States.  "  No  person, 
"except  a  natural  born  citizen,  or  a  citizen  of  the 
"  United  States  at  the  time  of  the  adoption  of  this  con- 
"  stitution,  shall  be  ehgible  to  the  office  of  president. 
"Neither  shall  any  person  be  eligible  to  that  office, 
"who  shall  not  have  attained  to  the  age  of  thirty-five 
"years,  and  been  fourteen  years  a  resident  within  the 
"United  States." 

^  758.  Considering  the  nature  of  the  duties,  the 
extent  of  the  information,  and  the  solid  wisdom  and 
experience  required  in  the  executive  department,  no 
one  can  reasonably  doubt  the  propriety  of  some  qual- 
ification of  age.  That,  which  has  been  selected,  is  the 
middle  age  of  fife,  by  which  period  the  character  and 
talents  of  individuals  are  generally  known,  and  fully  de- 
veloped ;  and  opportunities  have  usually  been  afforded 
for  public  service,  and  for  experience  in  the  public 
councils.  The  faculties  of  the  mind,  if  they  have  not 
then  attained  to  their  highest  maturity,  are  in  full  vig- 
our, and  hastening  towards  their  ripest  state.  The 
judgment,  acting  upon  large  materials,  has,  by  that 
time,  attained  a  solid  cast ;  and  the  principles,  which 
form  the  character,  and  the  integrity,  which  gives  lustre 
to  the  virtues  of  Ufe,  must  then,  if  ever,  have  acquired 
public  confidence  and  approbation. 

§  759.  It  is  indispensable,  too,  that  the  president 
should  be  a  natural  born  citizen  of  the  United  States, 
or  a  citizen  at  the  adoption  of  the  constitution,  and  for 
fourteen  years  before  his  election.     This  permission  of  a 


CH.  XXXVI.]       EXECUTIVE QUALIFICATIONS.  541 

naturalized  citizen  to  become  president  is  an  excep- 
tion from  the  great  fundamental  policy  of  all  govern- 
ments, to  exclude  foreign  influence  from  their  executive 
councils  and  duties.     It  was  doubtless  introduced  (for  it 
ha&  now  become  by  lapse  of  time  merely  nominal,  and 
will  soon   become   wholly  extinct)  out  of  respect  to 
those  distinguished  revolutionary  patriots,  w^ho  were 
born  in  a  foreign  land,  and  yet  had  entided  themselves 
to  high  honours  in  their  adopted  country.     A  positive 
exclusion  of  them  from  the  office  would  have  been  un- 
just to  their  merits,  and  painful  to  their  sensibilities. 
But  the  general  propriety  of  the  exclusion  of  foreigners, 
in  common  cases,  will  scarcely  be  doubted  by  any  sound 
statesman.     It  cuts  off  all  chances  for'  ambitious  for- 
eigners, who  might    otherwise   be  intriguing   for   the 
office  ;  and  interposes  a  barrier  against  those  corrupt 
interferences  of  foreign  governments  in  executive  elec- 
tions, which  have  inflicted  the  most  serious  evils  upon  the 
elective  monarchies  of  Europe.     Germany,  Poland,  and 
even  the  pontificate  of  Rome,  are  sad,  but  instructive 
examples  of  the  enduring  mischiefs  arising  from  this 
source.     A  residence  of  fourteen  years  in  the  United 
States  is  also  made  an  indispensable  requisite  for  every 
candidate  ;  so,  that  the  people  may  have  a  full  oppor- 
tunity to  know  his  character  and  merits,  and  that  he 
may  have  mingled  in  the  duties,  and  felt  the  interests, 
and  understood  the  principles,  and  nourished  the  attach- 
ments, belonging, to  every  citizen  in  a  republican  gov- 
ernment.    By  "residence,"  in  the  constitution,  is  to  be 
understood,   not   an  absolute    inhabitancy  within   the 
United  States  during  the  whole  period ;  but  such  an 
inhabitancy,  as   includes  a  permanent  domicil  in  the 
United  States.     No  one  has  supposed,  that  a  tempo- 
rary absence  abroad  on  public  business,  and  especially 


542  CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 

on  an  embassy  to  a  foreign  nation,  would  interrupt  the 
residence  of  a  citizen,  so  as  to  disqualify  him  for 
office.  If  the  word  were  to  be  construed  with  such 
strictness,  then  a  mere  journey  through  any  foreign 
adjacent  territory  for  health,  or  for  pleasure,  or  a  com- 
morancy there  for  a  single  day,  would  amount  to  a  dis- 
qualification. Under  such  a  construction  a  military  or 
civil  officer,  who  should  have  been  in  Canada  durinof 
the  late  war  on  public  business,  would  have  lost  his 
eligibility.  The  true  sense  of  residence  in  the  consti- 
tution is  fixed  domicil,  or  being  out  of  the  United  States, 
and  setded  abroad  for  the  purpose  of  general  inhabi- 
tancy, animo  manendi^  and  not  for  a  mere  temporary 
and  fugitive  purpose,  in  transitu, 

§  760.  The  next  clause  is,  "In  case  of  the  removal 
"of  the  president  from  office,  or  his  death,  resignation, 
"  or  inability  to  discharge  the  duties  of  the  said  office, 
"  the  same  shall  devolve  on  the  vice-president.  And 
"  the  congress  may  by  law  provide  for  the  case  of  re- 
"  moval,  death,  resignation,  or  inability  of  the  president 
"  and  vice-president,  declaring  what  officer  shall  then 
"  act  as  president ;  and  such  officer  shall  act  accord- 
"  ingly,  until  the  disability  be  removed,  or  a  president 
"  shall  be  elected." 

^761.  The  original  scheme  of  the  constitution  did 
not  embrace  (as  has  been  already  stated)  the  appoint- 
ment of  any  vice-president ;  and  in  case  of  the  death, 
resignation,  or  disability  of  the  president,  the  president 
of  the  senate  was  to  perform  the  duties  of  his  office. 
The  appointment  of  a  vice-president  was  carried  by  a 
vote  of  ten  states  to  one.  Congress,  in  pursuance  of 
the  power  here  given,  have  provided,  that  in  case  of 
the  removal,  death,  resignation,  or  inability  of  the  presi- 
dent and  vice-president,  the  president  of  the  senate 


CH.  XXXVI.]         EXECUTIVE COMPENSATION.  643 

pro  tempore,  and  in  case  there  shall  be  no  president, 
then  the  speaker  of  the  house  of  representatives  for  the 
time  being  shall  act  as  president,  until  the  disability  be 
removed,  or  a  president  shall  be  elected. 

^  762.  What  shall  be  the  proper  proof  of  the  re- 
signation of  the  president,  or  vice-president,  or  of  their 
refusal  to  accept  the  office,  is  left  open  by  the  consti- 
tution. But  congress,  with  great  wisdom  and  fore- 
cast, have  provided,  that  it  shall  be  by  some  instrument 
in  writing,  declaring  the  same,  subscribed  by  the 
party,  and  delivered  into  the  office  of  the  secretary 
of  state. 

^  763.  The  next  clause  is,  "  The  president  shall,  at 
"stated  times,  receive  for  his  services  a  compensa- 
"  tion,  which  shall  neither  be  increased,  nor  diminish- 
"  ed  during  the  period,  for  which  he  shall  have  been 
"  elected,  and  he  shall  not  receive  within  that  period 
"  any  other  emolument  from  the  United  States,  or  any 
"of  them." 

^  764,  It  is  obvious,  that  without  due  attention  to 
the  proper  support  of  the  president,  the  separation 
of  the  executive  from  the  legislative  department  would 
be  merely  nominal  and  nugatory.  The  legislature,  with 
a  discretionary  power  over  his  salary  and  emolument, 
would  soon  render  him  obsequious  to  their  will.  A 
control  over  a  man's  living  is  in  most  cases  a  control 
over  his  actions.  To  act  upon  any  other  view  of  the 
subject  would  be  to  disregard  the  voice  of  experience, 
and  the  operation  of  the  invariable  principles,  which 
regulate  human  conduct.  There  are,  indeed,  men, 
who  could  neither  be  distressed,  nor  won  into  a  sacri- 
fice of  their  duty.  But  this  stern  virtue  is  the  growth 
of  few  soils ;  and  it  will  be  found,  that  the  general  les- 
son of  human  hfe  is,  that  men  obey  their  interests ; 


544    CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

that  they  may  be  driven  by  poverty  into  base  compli- 
ances, or  tempted  by  largesses  to  a  desertion  of  duty. 
Nor  have  there  been  wanting  examples  in  our  own 
country  of  the  intimidation,  or  seduction  of  the  execu- 
tive, by  the  terrors,^  or  allurements  of  the  pecuniary 
arrangements  of  the  legislative  body.  The  wisdom 
of  this  clause  can  scarcely  be  too  highly  commended. 
The  legislature,  on  the  appointment  of  a  president,  is 
once  for  all  to  declare,  what  shall  be  the  compensation 
for  his  services  during  the  time,  for  which  he  shall  have 
been  elected.  This  done,  they  will  have  no  power  to 
alter  it,  either  by  increase  or  diminution,  until  a  new 
period  of  service  by  a  new  election  commences.  They 
can  neither  weaken  his  fortitude  by  operating  upon  his 
necessities,  nor  corrupt  his  integrity  by  appeahng  to  his 
avarice.  Neither  the  Union,  nor  any  of  its  members, 
will  be  at  liberty  to  give,  nor  will  he  be  at  Hberty  to  re- 
ceive, any  other  emolument.  He  can,  of  course,  have 
no  pecuniary  inducement  to  renounce,  or  desert,  the  in- 
dependence intended  for  him  by  the  constitution.  The 
salary  of  the  first  president  was  fixed  by  congress  at  the 
sum  of  twenty-five  thousand  dollars  per  annum,  and  of 
the  vice-president,  at  five  thousand  dollars.  And  to 
prevent  any  diflSculty,  as  to  future  presidents,  congress, 
by  a  permanent  act,  a  few  years  afterwards  established 
the  same  compensation  for  all  future  presidents  and 
vice-presidents.  So  that,  unless  some  great  changes 
should  intervene,  the  independence  of  the  executive  is 
permanently  secured  by  an  adequate  maintenance ; 
and  it  can  scarcely  be  diminished,  unless  some  future 
executive  shall  basely  betray  his  duty  to  his  successor. 
^  765.  The  next  clause  is,  "Before  he  enters  on 
"  the  execution  of  his  office,  he  shall  take  the  following 
"  oath  or  aflPirmation  :  I  do  solemnly  swear,  (or  affirm,) 


CH.  XXXVI.]  EXECUTIVE OATH.  545 

"  that  I  will  faithfully  execute  the  office  of  President  of 
"the  United  States,  and  will,  to  the  best  of  my  ability, 
"  preserve,  protect,  and  defend  the  constitution  of  the 
«  United  States." 

^  765.  There  is  little  need  of  commentary  upon 
this  clause.  No  man  can  well  doubt  the  propriety  of 
placing  a  president  of  the  United  States  under  the 
most  solemn  obligations  to  preserve,  protect,  and  de- 
fend the  constitution.  It  is  a  suitable  pledge  of  his 
fidelity  and  responsibility  to  his  country ;  and  creates 
upon  his  conscience  a  deep  sense  of  duty,  by  an  appeal, 
at  once  in  the  presence  of  God  and  man,  to  the  most 
sacred  and  solemn  sanctions,  which  can  operate  upon 
the  human  mind. 


Abr. 


646  CONSTITUTION    OF    THE    U.    STATES.    [BOOK  III 


CHAPTER  XXXVIL 


EXECUTIVE POWERS    AND    DUTIES. 


§  766.  Having  thus  considered  the  manner,  in 
which  the  executive  department  is  organized,  the 
next  inquiry  is,  as  to  the  powers,  with  which  it  is  en- 
trusted. These,  and  the  corresponding  duties,  are 
enumerated  in  the  second  and  third  sections  of  the 
second  article  of  the  constitution. 

^  767.  The  first  clause  of  the  second  section  is, 
"  The  President  shall  be  commander-in-chief  of  the 
''  army  and  navy  of  the  United  States,  and  of  the 
"  militia  of  the  several  states,  when  called  into  the 
"  actual  service  of  the  United  States.  He  may  re- 
"  quire  the  opinion  in  writing  of  the  principal  officer 
"  in  each  of  the  executive  departments,  upon  any 
"  subject  relating  to  the  duties  of  their  respective 
"  offices.  And  he  shall  have  power  to  grant  re- 
"  prieves  and  pardons  for  offences  against  the  United 
"  States,  except  in  cases  of  impeachment." 

^  768.  The  command  and  application  of  the  pub- 
lic force,  to  execute  the  laws,  to  maintain  peace,  and 
to  resist  foreign  invasion,  are  powers  so  obviously  of 
an  executive  nature,  and  require  the  exercise  of  quali- 
ties so  peculiarly  adapted  to  this  department,  that  a 
well-organized  government  can  scarcely  exist,  when 
they  are  taken  away  from  it.  Of  all  the  cases  and 
concerns  of  government,  the  direction  of  war  most 
peculiarly  demands  those  qualities,  which  distinguish 
the  exercise  of  power  by  a  single  hand.  Unity  of 
plan,  promptitude,  activity,  and  decision,  are  indispen- 
sable to  success ;  and  these  can  scarcely  exist,  except 


CH.  XXXVII.]  EXECUTIVE POWERS.  547 

when  a  single  magistrate  is  entrusted  exclusively  with 
the  power.  Even  the  coupling  of  the  authority  of  an 
executive  council  with  him,  in  the  exercise  of  such 
powers,  enfeebles  the  system,  divides  the  responsibil- 
ity, and  not  unfrequently  defeats  every  energetic  mea- 
sure. Timidity,  indecision,  obstinacy,  and  pride  of 
opinion,  must  mingle  in  all  such  councils,  and  infuse  a 
torpor  and  sluggishness,  destructive  of  all  military 
operations.  Indeed,  there  would  seem  to  be  little 
reason  to  enforce  the  propriety  of  giving  this  power 
to  the  executive  department,  (whatever  may  be  its 
actual  organization,)  since  it  is  in  exact  coincidence 
with  the  provisions  of  our.  state  constitutions  ;  and 
therefore  seems  to  be  universally  deemed  safe,  if  not 
vital  to  the  system. 

^  769.  The  next  provision  is,  as  to  the  power  of 
the  president,  to  require  the  opinions  in  writing  of  the 
heads  of  the  executive  departments.  It  has  been  re- 
marked, that  this  is  a  mere  redundancy,  and  the  right 
would  result  from  the  very  nature  of  the  office.  Still, 
it  is  not  without  use,  as  it  imposes  a  more  strict  re- 
sponsibility, and  recognises  a  public  duty  of  high  im- 
portance and  value  in  critical  times.  It  has,  in  the 
progress  of  the  government,  been  repeatedly  acted 
upon  ;  but  by  no  president  with  more  wisdom  and 
propriety,  than  by  President  Washington. 

§  770.  The  next  power  is,  "  to  grant  reprieves  and 
pardons."  It  has  been  said  by  the  marquis  Beccaria, 
that  the  power  of  pardon  does  not  exist  under  a  per- 
fect administration  of  the  laws  ;  and  that  the  admission 
of  the  power  is  a  tacit  acknowledgment  of  the  infirmity 
of  the  course  of  justice.  But  if  this  be  a  defect  at  all, 
it  arises  from  the  infirmity  of  human  nature  generally  ; 
and  in  this  view,  is  no  more  objectionable,  than   any 


548 


CONSTITUTION    OF    THE    U.    STATES.     [bOOK  III. 


Other  power  of  government ;  for  every  such  powder,  in 
some  sort,  arises  from  human  infirmity.     But  if  it  be 
meant,  that  it  is  an  imperfection  in  human  legislation 
to  admit  the  power  of  pardon  in  any  case,  the  propo- 
sition may  well  be   denied,  and  some  proof,  at  least, 
be  required  of  its  sober  reality.     The  common  argu- 
ment is,  that  where  punishments  are  mild,  they  ought 
to  be  certain  ;   and  that  the  clemency  of  the  chief 
magistrate  is  a  tacit  disapprobation  of  the  laws.     But 
surely  no  man  in  his  senses  will  contend,  that  any  sys- 
tem of  laws  can  provide  for  every  possible  shade  of 
guilt  a  proportionate  degree  of  punishment.    The  most, 
that  ever  has  been,  and  ever  can  be  done,  is  to  provide 
for  the  punishment  of  crimes  by  some  general  rules, 
and  within  some  general  limitations  i     The  total  ex- 
clusion of  all  power  of  pardon  would  necessarily  intro- 
'  duce  a  very  dangerous  power  in  judges  and  juries,  of 
following  the  spirit,  rather  than  the  letter  of  the  laws ; 
or,  out  of  humanity,  of  suffering  real  offenders  wholly 
to  escape  punishment;    or  else,  it  must  be  holden, 
(what  no  man  will  seriously  avow,)  that  the  situation 
and  circumstances   of  the  offender,  though  they  alter 
not  the  essence  of  the  offence,  ought  to  make  no  dis- 
tinction in  the  punishment.     There  are  not  only  various 
gradations  of  guilt  in  the  commission  of  the    same 
crime,  which  are  not  susceptible  of  any  previous  enu- 
meration and  definition ;  but  the  proofs  must,  in  many 
cases,  be  imperfect  in  their  own  nature,  not  only  as 
to  the  actual  commission  of  the  offence,  but  also  as  to 
the  aggravating  or  mitigating  circumstances.     In  many 
cases,  convictions  must  be  founded  upon  presumptions 
and  probabilities.     Would  it  not  be  at  once  unjust  and 
unreasonable  to  exclude  all  means  of  mitigating  pun- 
ishment, when  subsequent  inquiries  should  demonstrate. 


CH.  XXXVII.]  EXECUTIVE  —  POWERS.  649 

that  the  accusation  was  wholly  unfounded,  or  the 
crime  greatly  diminished  in  point  of  atrocity  and  ag- 
gravation, from  what  the  evidence  at  the  trial  seemed 
to  establish  ?  A  power  to  pardon  seems,  indeed,  in- 
dispensable under  the  most  common  administration  of 
the  law-  by  human  tribunals ;  since,  otherwise,  men 
would  sometimes  fall  a  prey  to  the  vindictiveness  of 
accusers,  the  inaccuracy  of  testimony,  and  the  falli- 
bility of  jurors  and  courts.  Besides  ;  the  law  may  he 
broken,  and  yet  the  offender  be  placed  in  such  circum- 
stances, that  he  will  stand,  in  a  great  measure,  and 
perhaps  wholly,  excused  in  moral  and  general  justice, 
though  not  in  the  strictness  of  the  law.  What  then  is 
to  be  done  ?  Is  he  to  be  acquitted  against  the  law  ; 
or  convicted,  and  to  suffer  punishment  infinitely  be- 
yond his  deserts  ?  If  an  arbitrary  power  is  to  be 
given  to  meet  such  cases,  where  can  it  be  so  properly 
lodged,  as  in  the  executive  department  ? 

§  771.  So  far  from  the  power  of  pardon  being  in- 
compatible with  the  fundamental  principles  of  a  repub- 
lic, (as  has  sometimes  been  stated)  it  may  be  boldly 
asserted  to  be  peculiarly  appropriate,  and  safe  in  all 
free  states  ;  because  the  power  can  there  be  guarded 
by  a  just  responsibility  for  its  exercise.  Little  room 
will  be  left  for  favouritism,  personal  caprice,  or  per- 
sonal resentment.  If  the  power  should  ever  be 
abused,  it  would  be  far  less  likely  to  occur  in  oppo- 
sition, than  in  obedience  to  the  will  of  the  people. 
The  danger  is  not,  that  in  republics  the  victims  of  the 
law  will  too  often  escape  punishment  by  a  pardon ; 
but  that  the  power  will  not  be  sufficiently  exerted  in 
cases,  where  public  feeling  accompanies  the  prosecu- 
tion, and  assigns  the  ultimate  doom  to  persons,  who 
have  been  convicted  upon  slender  testimony,  or  popu- 
lar suspicions. 


550  CONSTITUTION    OF    THE    U.    STATES.    [BOOK  III. 

§  772.  The  power  to  pardon,  then,  being  a  fit  one 
to  be  entrusted  to  all  governments,  humanity  and 
sound  policy  dictate,  that  this  benign  prerogative 
should  be,  as  little  as  possible,  fettered,  or  embarrass- 
ed. The  criminal  code  of  every  country  partakes  so 
much  of  necessary  severity,  that,  w^ithout  an  easy  ac- 
cess to  exceptions  in  favour  of  unfortunate  guilt,  jus- 
tice would  assume  an  aspect  too  sanguinary  and  cruel. 
The  only  question  is,  in  what  department  of  the  gov- 
ernment it  can  be  most  safely  lodged  ;  and  that  must 
principally  refer  to  the  executive,  or  legislative  de- 
partment. The  reasoning  in  favour  of  vesting  it  in 
the  executive  department  may  be  thus  stated.  A 
sense  of  responsibility  is  always  strongest  in  propor- 
tion, as  it  is  undivided.  A  single  'person  would, 
therefore,  be  most  ready  to  attend  to  the  force  of 
those  motives,  which  might  plead  for  a  mitigation  of 
the  rigour  of  the  law  ;  and  the  least  apt  to  yield  to 
considerations,  which  were  calculated  to  shelter  a  fit 
object  of  its  vengeance.  The  consciousness,  that  the 
life,  or  happiness  of  an  offender  was  exclusively  within 
his  discretion,  would  inspire  scrupulousness  and  cau- 
tion ;  and  the  dread  of  being  accused  of  weakness,  or 
connivance,  would  beget  circumspection  of  a  different 
sort.  On  the  other  hand,  as  men  generally  derive 
confidence  from  numbers,  a  large  assembly  might  nat- 
urally encourage  each  other  in  acts  of  obduracy,  as  no 
one  would  feel  much  apprehension  of  public  censure. 
A  public  body,  too,  ordinarily  engaged  in  other  duties, 
would  be  little  apt  to  sift  cases  of  this  sort  thoroughly 
to  the  bottom,  and  would  be  disposed  to  yield  to  the 
solicitations,  or  be  guided  by  the  prejudices  of  a  few ; 
and  thus  shelter  their  own  acts  of  yielding  too  much, 
or  too  little,  under  the  common  apology  of  ignorance. 


CH.  XXXVII.]  EXECUTIVE POWERS.       -  561 

or  confidence.  A  single  magistrate  would  be  com- 
pelled to  search,  and  act  upon  his  own  responsibility  ; 
and  therefore  would  be  at  once  a  more  enlightened 
dispenser  of  mercy,  and  a  more  firm  administrator  of 
public  justice. 

^  773.  There  is  an  exception  to  the  powder  of  par- 
don, that  it  shall  not  extend  to  cases  of  impeachment, 
which  takes  from  the  president  every  temptation  to 
abuse  it  in  cases  of  political  and  official  offences  by 
persons  in  the  public  service.  The  power  of  impeach- 
ment will  generally  be  applied  to  persons  holding  high 
offices  under  the  government ;  and  it  is  of  great  con- 
sequence, that  the  president  should  not  have  the  power 
of  preventing  a  thorough  investigation  of  their  conduct, 
or  of  securing  them  against  the  disgrace  of  a  public 
conviction  by  impeachment,  if  they  should  deserve  it. 
The  constitution  has,  therefore,  wisely  interposed  this 
check  upon  his  power,  so  that  he  cannot,  by  any  cor- 
rupt coalition  with  favourites,  or  dependents  in  high 
offices,  screen  them  from  punishment. 

^  774.  It  would  seem  to  result  from  the  principle, 
on  which  the  power  of  each  branch  of  the  legislature 
to  punish  for  contempts  is  founded,  that  the  executive 
authority  cannot  interpose  between  them  and  the  of- 
fender. The  main  object  is  to  secure  a  purity,  inde- 
pendence, and  ability  of  the  legislature,  adequate  to  the 
discharge  of  all  their  duties.  If  they  can  be  overawed 
by  force,  or  corrupted  by  largesses,  or  interrupted  in 
their  proceedings  by  violence,  without  the  means  of 
self-protection,  it  is  obvious,  that  they  will  soon  be 
found  incapable  of  legislating  with  wisdom  or  inde- 
pendence. If  the  executive  should  possess  the  power 
of  pardoning  any  such  offender,  they  would  be  wholly 
dependent  upon  his  good  will  and  pleasure  for  the  ex- 


652  CONSTITUTION    OF    THE    U.    STATES.    [bOOK  III. 

ercise  of  their  own  powers.  Thus,  in  effect,  the  rights 
of  the  people  entrusted  to  them  would  be  placed  in 
perpetual  jeopardy.  The  constitution  is  silent  in  re- 
spect to  the  right  of  granting  pardons  in  such  cases,  as 
it  is  in  respect  to  the  jurisdiction  to  punish  for  con- 
tempts. The  latter  arises  by  implication  ;  and  to  make 
it  effectual  the  former  is  excluded  by  implication. 

^  775.  Subject  to  these  exceptions,  (and  perhaps 
there  may  be  others  of  a  like  nature  standing  upon 
special  grounds,)  the  power  of  pardon  is  general  and 
unqualified,  reaching  from  the  highest  to  the  lowest 
offences.  The  power  of  remission  of  fines,  penalties, 
and  forfeitures  is  also  included  in  it ;  and  may  in  the 
last  resort  be  exercised  by  the  executive,  although  it 
is  in  many  cases  by  our  laws  confided  to  the  treasury 
department.  No  law  can  abridge  the  constitutional 
powers  of  the  executive  department,  or  interrupt  its 
right  to  interpose  by  pardon  in  such  cases. 

^  776.  The  next  clause  is  :  "  He  (the  president) 
"  shall  have  power,  by  and  with  the  advice  and  consent 
"  of  the  senate,  to  make  treaties,  provided  two  thirds 
"  of  the  senators  present  concur.  And  he  shall  nom- 
"  inate,  and,  by  and  with  the  advice  and  consent  of 
"  the  senate,  shall  appoint,  ambassadors,  other  public 
"  ministers,  and  consuls,  judges  of  the  Supreme  Court, 
"  and  all  other  officers  of  the  United  States,  whose 
"  appointments  are  not  herein  otherwise  provided  for, 
"  and  which  shall  be  established  by  law.  But  the 
''  congress  may  by  law  vest  the  appointment  of  such 
"  inferior  officers,  as  they  think  proper,  in  the  presi- 
"  dent  alone,  in  the  courts  of  law,  or  in  the  heads  of 
"  departments." 

^  777.  The  power  "  to  make  treaties  "  is  by  the 
constitution  general ;  and  of  course  it  embraces  all 


CH.  XXXVII.]  EXECUTIVE POWERS.  553 

sorts  of  treaties,  for  peace  or  war  ;  for  commerce  or 
territory  ;  for  alliance  or  succours  ;  for  indemnity  for 
injuries  or  payment  of  debts  ;  for  the  recognition  or 
enforcement  of  principles  of  public  law  ;  and  for  any 
other  purposes,  which  the  policy  or  interests  of  inde- 
pendent sovereigns  may  dictate  in  their  intercourse 
with  each  other.  But,  though  the  power  is  thus  gen- 
eral and  unrestricted,  it  is  not  to  be  so  construed,  as 
to  destroy  the  fundamental  laws  of  the  state.  A 
power  given  by  the  constitution  cannot  be  construed  to 
authorize  a  destruction  of  other  powers  given  in  the 
same  instrument.  It  must  be  construed,  therefore,  in 
subordination  to  it ;  and  cannot  supersede,  or  interfere 
with  any  other  of  its  fundamental  provisions.  Each 
is  equally  obligatory,  and  of  paramount  authority 
within  its  scope ;  and  no  one  embraces  a  right  to  an- 
nihilate any  other.  A  treaty  to  change  the  organiza- 
tion of  the  government,  to  annihilate  its  sovereignty, 
to  overturn  its  republican  form,  or  to  deprive  it  of  its 
constitutional  powers,  would  be  void  ;  because  it  would 
destroy,  what  it  was  designed  merely  to  fulfil,  the  will 
of  the  people.  Whether  there  are  any  other  restric- 
tions, necessarily  growing  out  of  the  structure  of  the 
government,  will  remain  to  be  considered,  whenever 
the  exigency  shall  arise. 

§  778.  The  power  of  making  treaties  is  indispensa- 
ble to  the  due  exercise  of  national  sovereignty,  and 
very  important,  especially  as  it  relates  to  war,  peace, 
atid  commerce.  That  it  should  belong  to  the  national 
government  would  seem  to  be  irresistibly  established 
by  every  argument  deduced  from  experience,  from 
public  policy,  and  a  close  survey  of  the  objects  of  gov- 
ernment. It  is  difficult  to  circumscribe  the  power 
within  any  definite  limits,  applicable  to  all  times  and 

Abr.  70 


554     CONSTITUTION  OF  THE  U.  STATES.  [BOOK  III. 

exigencies,  without  impairing  its  efficacy,  or  defeating 
its  purposes.  The  constitution  has,  therefore,  made  it 
general  and  unqualified.  This  very  circumstance, 
however,  renders  it  highly  important,  that  it  should 
be  delegated  in  such  a  mode,  and  with  such  precau- 
tions, as  will  afford  the  highest  security,  that  it  will 
be  exercised  by  men  the  best  qualified  for  the  purpose, 
and  in  the  manner  most  conducive  to  the  public  good. 
With  such  views,  the  question  was  naturally  presented 
in  the  convention,  to  what  body  shall  it  be  delegated  ? 
It  might  be  delegated  to  congress  generally,  as  it  was 
under  the  confederation,  exclusive  of  the  president, 
or  in  conjunction  with  him.  It  might  be  delegated 
to  either  branch  of  the  legislature,  exclusive  of,  or  in 
conjunction  with  him.  Or  it  might  be  exclusively 
delegated  to  the  president. 

^  779.  In  the  formation  of  treaties,  secrecy  and  im- 
mediate despatch  are  generally  requisite,  and  some- 
times absolutely  indispensable.  Intelligence  may  often 
be  obtained,  and  measures  matured  in  secrecy,  which 
could  never  be  done,  unless  in  the  faith  and  confidence 
of  profound  secrecy.  No  man  at  all  acquainted  with 
diplomacy,  but  must  have  felt,  that  the  success  of  ne- 
gotiations as  often  depends  upon  their  being  unknown 
by  the  public,  as  upon  their  justice  or  their  policy. 
Men  will  assume  responsibility  in  private,  and  com- 
municate information,  and  express  opinions,  which 
they  would  feel  the  greatest  repugnance  publicly  to 
avow  ;  and  measures  may  be  defeated  by  the  intrigues 
and  management  of  foreign  powers,  if  they  suspect 
them  to  be  in  progress,  and  understand  their  precise 
nature  and  extent.  In  this  view  the  executive  de- 
partment is  a  far  better  depositary  of  the  power,  than 
congress  would   be.     The  delays  incident  to  a  large 


CH.  XXXVII.]  EXECUTIVE  —  POWERS.  656 

assembly  ;  the  differences  of  opinion  ;  the  time  con- 
sumed in  debate  ;  and  the  utter  impossibility  of  secrecy, 
all  combine  to  render  them  unfitted  for  the  purposes 
of  diplomacy.  And  our  own  experience  during  the 
confederation  abundantly  demonstrated  all  the  evils, 
which  the  theory  would  lead  us  to  expect.  Besides  ; 
there  are  tides  in  national  affairs,  as  well  as  in  the 
affairs  of  private  life.  To  discern  and  profit  by  them 
is  the  part  of  true  political  wisdom  ;  and  the  loss  of  a 
week,  or  even  of  a  day,  may  sometimes  change  the 
whole  aspect  of  affairs,  and  render  negotiations  wholly 
nugatory,  or  indecisive.  The  loss  of  a  battle,  the 
death  of  a  prince,  the  removal  of  a  minister,  the  press- 
ure or  removal  of  fiscal  embarrassments  at  the  moment, 
and  other  circumstances,  may  change  the  whole  pos- 
ture of  affairs,  and  ensure  success,  or  defeat  the  best 
concerted  project.  The  executive,  having  a  constant 
eye  upon  foreign  affairs,  can  promptly  meet,  and  even 
anticipate  such  emergencies,  and  avail  himself  of  all 
the  advantages  accruing  from  them  ;  while  a  large 
assembly  would  be  coldly  deliberating  on  the  chances 
of  success,  and  the  policy  of  opening  negotiations. 
It  is  manifest,  then,  that  congress  would  not  be  a  suit- 
able depositary  of  the  power. 

§  780.  The  same  difficulties  would  occur  from  con- 
fiding it  exclusively  to  either  branch  of  congress.  Each 
is  too  numerous  for  prompt  and  immediate  action,  and 
secrecy.  The  matters  in  negotiations,  which  usually 
require  these  qualities  in  the  highest  degree,  are  the 
preparatory  and  auxiliary  measures  ;  and  which  are  to 
be  seized  upon,  as  it  were,  in  an  instant.  The  presi- 
dent could  easily  arrange  them.  But  the  house,  or 
the  senate,  if  in  session,  could  not  act,  until  after  great 
delays  ;  and  in  the  recess  could  not  act  at  all.     To 


55S  CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

have  entrusted  the  power  to  either  would  have  been 
to  relinquish  the  benefits  of  the  constitutional  agency 
of  the  president  in  the  conduct  of  foreign  negotiations. 
It  is  true,  that  the  branch  so  entrusted  might  have  the 
option  to  employ  the  president  in  that  capacity  ;  but 
they  would  also  have  the  option  of  refraining  from  it ; 
and  it  cannot  be  disguised,  that  pique,  or  cabal,  or 
personal  or  political  hostility,  might  induce  them  to 
keep  their  pursuits  at  a  distance  from  his  inspection 
and  participation.  Nor  could  it  be  expected,  that  the 
president,  as  a  mere  ministerial  agent  of  such  branch, 
would  enjoy  the  confidence  and  respect  of  foreign 
powers  to  the  same  extent,  as  he  would,  as  the  con- 
stitutional representative  of  the  nation  itself;  and  his 
interposition  would  of  course  have  less  efficacy  and 
weight. 

§  781.  On  the  other  hand,  considering  the  delicacy 
and  extent  of  the  power,  it  is  too  much  to  expect,  that 
a  free  people  would  confide  to  a  single  magistrate, 
however  respectable,  the  sole  authority  to  act  conclu- 
sively, as  well  as  exclusively,  upon  the  subject  of 
treaties.  In  England,  the  power  to  make  treaties  is 
exclusively  vested  in  the  crown.  But  however  proper 
it  may  be  in  a  monarchy,  there  is  no  American  states- 
man, but  must  feel,  that  such  a  prerogative  in  an 
American  president  would  be  inexpedient  and  danger- 
ous. It  would  be  inconsistent  w^ith  that  wholesome 
jealousy,  which  all  republics  ought  to  cherish  of  all 
depositaries  of  power  ;  and  which,  experience  teaches 
us,  is  the  best  security  against  the  abuse  of  it.  The 
check,  which  acts  upon  the  mind  from  the  considera- 
tion, that  what  is  done  is  but  preliminary,  and  requires 
the  assent  of  other  independent  minds  to  give  it  a 
legal  conclusiveness,  is  a  restraint,  which  awakens 
caution,  and  compels  to  deliberation. 


CH.  XXXVII.]  EXECUTIVE POWERS.  557 

^  782.  The  plan  of  the  constitution  is  happily  adapt- 
ed to  attain  all  just  objects  in  relation  to  foreign  nego- 
tiations. While  it  confides  the  power  to  the  executive 
department,  it  guards  it  from  serious  abuse  by  placing 
it  under  the  ultimate  superintendence  of  a  select  body 
of  high  character  and  high  responsibility.  It  is  indeed 
clear  to  a  demonstration,  that  this  joint  possession  of 
the  power  affords  a  greater  security  for  its  just  exercise, 
than  the  separate  possession  of  it  by  either.  The 
president  is  the  immediate  author  and  finisher  of  all 
treaties  ;  and  all  the  advantages,  which  can  be  derived 
from  talents,  information,  integrity,  and  deliberate  in- 
vestigation on  the  one  hand,  and  from  secrecy  and 
despatch  on  the  other,  are  thus  combined  in  the  sys- 
tem. But  no  treaty,  so  formed,  becomes  binding  upon 
the  country,  unless  it  receives  the  deliberate  assent  of 
two  thirds  of  the  senate.  In  that  body  all  the  states 
are  equally  represented  ;  and,  from  the  nature  of  the 
appointment  and  duration  of  the  office,  it  may  fairly  be 
presumed  at  all  times  to  contain  a  very  large  portion  of 
talents,  experience,  political  wisdom,  and  sincere  pa- 
triotism, a  spirit  of  liberality,  and  a  deep  devotion  to  all 
the  substantial  interests  of  the  country.  The  constitu- 
tional check  of  requiring  two  thirds  to  confirm  a  treaty 
is,  of  itself,  a  sufficient  guaranty  against  any  wanton 
sacrifice  of  private  rights,  or  any  betrayal  of  public 
privileges.  To  suppose  otherwise  would  be  to  sup- 
pose, that  a  representative  republican  government  was 
a  mere  phantom  ;  that  the  state  legislatures  were  inca- 
pable, or  unwilling  to  choose  senators  possessing  due 
qualifications  ;  and  that  the  people  would  voluntarily 
confide  power  to  those,  who  were  ready  to  promote 
their  ruin,  and  endanger,  or  destroy  their  liberties. 
Without  supposing  a  case  of  utter  indifference,  or  utter 


558 


CONSTITUTION    OF    THE    U.    STATES.    [bOOK  III. 


corruption  in  the  people,  it  would  be  impossible,  that 
the  senate  should  be  so  constituted  at  any  time,  as  that 
the  honour  and  interests  of  the  country  would  not  be 
safe  in  their  hands.  When  such  an  indifference,  or 
corruption  shall  have  arrived,  it  will  be  in  vain  to  pre- 
scribe any  remedy  ;  for  the  constitution  will  have 
crumbled  into  ruins,  or  have  become  a  mere  shadow, 
about  which  it  would  be  absurd  to  disquiet  ourselves. 
^  783.  Some  doubts  appear  to  have  been  entertain- 
ed in  the  early  stages  of  the  government,  as  to  the 
correct  exposition  of  the  constitution  in  regard  to  the 
agency  of  the  senate  in  the  formation  of  treaties.  The 
question  was,  whether  the  agency  of  the  senate  was 
admissible  previous  to  the  negotiation,  so  as  to  advise 
on  the  instructions  to  be  given  to  the  ministers  ;  or 
w  as  limited  to  the  exercise  of  the  power  of  advice  and 
consent,  after  the  treaty  was  formed  ;  or  whether  the 
president  possessed  an  option  to  adopt  one  mode,  or 
the  other,  as  his  judgment  might  direct.  The  prac- 
tical exposition  assumed  on  the  first  occasion,  which 
seems  to  have  occurred  in  President  Washington's  ad- 
ministration, was,  that  the  option  belonged  to  the  ex- 
ecutive to  adopt  either  mode,  and  the  senate  might 
advise  before,  as  well  as  after,  the  formation  of  a 
treaty.  Since  that  period,  the  senate  have  been 
rarely,  if  ever,  consulted,  until  after  a  treaty  has  been 
completed,  and  laid  before  them  for  ratification.  When 
so  laid  before  the  senate,  that  body  is  in  the  habit  of 
deliberating  upon  it,  as,  indeed,  it  does  on  all  executive 
business,  in  secret,  and  with  closed  doors.  The  senate 
may  wholly  reject  the  treaty,  or  advise  and  consent  to 
a  ratification  of  part  of  the  articles,  rejecting  others, 
or  recommend  additional  or  explanatory  articles.  In 
the  event  of  a  partial  ratification,  the  treaty  does  not 


CH.  XXXVII.]      EXECUTIVE APPOINTMENTS.  559 

become  the  law  of  the  land,  until  the  president  and 
the  foreign  sovereign  have  each  assented  to  the  modi- 
fications proposed  by  the  senate.  But,  although  the 
president  may  ask  the  advice  and  consent  of  the  senate 
to  a  treaty,  he  is  not  absolutely  bound  by  it ;  for  he 
may,  after  it  is  given,  still  constitutionally  refuse  to 
ratify  it.  Such  an  occurrence  will  probably  be  rare, 
because  the  president  will  scarcely  incline  to  lay  a 
treaty  before  the  senate,  which  he  is  not  disposed  to 
ratify. 

^  784.  The  next  part  of  the  clause  respects  appoint- 
ments to  office.  The  president  is  to  nominate,  and 
by  and  with  the  advice  and  consent  of  the  senate,  to 
appoint  ambassadors,  other  public  ministers,  and  con- 
suls, judges  of  the  Supreme  Court,  and  other  officers, 
whose  appointments  are  not  otherwise  provided  for. 

^  785.  Under  the  confederation,  an  exclusive  pow- 
er was  given  to  congress  of  "  sending  and  receiving 
ambassadors."  The  term  "  ambassador,"  strictly  con- 
strued, (as  would  seem  to  be  required  by  the  second 
article  of  that  instrument,)  comprehends  the  highest 
grade  only  of  public  ministers  ;  and  excludes  those 
grades,  which  the  United  States  would  be  most  likely 
to  prefer,  whenever  foreign  embassies  may  be  neces- 
sary. But  under  no  latitude  of  construction  could  the 
term,  ''  ambassadors,"  comprehend  consuls.  Yet  it 
was  found  necessary  by  congress  to  employ  the  infe- 
rior grades  of  ministers,  and  to  send  and  receive  con- 
suls. It  is  true,  that  the  mutual  appointment  of  con- 
suls might  have  been  provided  for  by  treaty  ;  and 
where  no  treaty  existed,  congress  might  perhaps  have 
had  the  authority  under  the  ninth  article  of  the  confed- 
eration, which  conferred  a  general  authority  to  appoint 
officers,  for  managing  the  general  affairs  of  the  United 


560  CONSTITUTION    OF   THE    U.    STATES.    [bOOK  III. 

States.  But  the  admission  of  foreign  consuls  into  the 
United  States,  when  not  stipulated  for  by  treaty,  was 
no  where  provided  for.  The  whole  subject  was  full 
of  embarrassment  and  constitutional  doubts  ;  and  the 
provision  in  the  constitution,  extending  the  appoint- 
ment to  other  public  ministers  and  consuls,  as  well  as 
to  ambassadors,  is  a  decided  improvement  upon  the 
confederation. 

§  786.  The  mode  of  appointment  to  office,  pointed 
out  by  the  constitution,  seems  entitled  to  peculiar  com- 
mendation. There  are  several  ways,  in  which  in  ordi- 
nary cases  the  power  may  be  vested.  It  may  be  con- 
fided to  congress  ;  or  to  one  branch  of  the  legislature  ; 
or  to  the  executive  alone ;  or  to  the  executive  in  con- 
currence with  any  selected  branch.  The  exercise  of 
it  by  the  people  at  large  will  readily  be  admitted  by 
all  considerate  statesmen  to  be  impracticable,  and 
therefore  need  not  be  examined.  The  suggestions, 
already  made  upon  the  treaty-making  power,  and  the 
inconveniences  of  vesting  it  in  congress,  apply  with 
great  force  to  that  of  vesting  the  power  of  appoint- 
itient  to  office  in  the  same  body.  It  would  enable 
candidates  for  office  to  introduce  all  sorts  of  cabals, 
intrigues,  and  coalitions  into  congress  ;  and  not  only 
distract  their  attention  from  their  proper  legislative 
duties  ;  but  probably  in  a  very  high  degree  influence 
all  legislative  measures.  A  new  source  of  division 
and  corruption  would  thus  be  infused  into  the  public 
councils,  stimulated  by  private  interests,  and  pressed 
by  personal  solicitations.  What  would  be  to  be  done, 
in  case  the  senate  and  house  should  disagree  in  an  ap- 
pointment ?  Are  they  to  vote  in  convention,  or  as 
distinct  bodies  ?  There  would  be  practical  difficulties 
attending  both  courses  ;  and  experience  has  not  jus- 


CH.  XXXVII.]    EXECUTIVE APPOINTMENTS.  561 

tified  the  belief,  that  either  w^ould  conduce  to  good 
appointments,  or  to  due  responsibility. 

^  787.  The  same  reasoning  would  apply  to  vesting 
the  power  exclusively  in  either  branch  of  the  legisla- 
ture. It  would  make  the  patronage  of  the  government 
subservient  to  private  interests,  and  bring  into  suspicion 
the  motives  and  conduct  of  members  of  the  appointing 
body.  There  would  be  great  danger,  that  the  elections 
at  the  polls  might  be  materially  influenced  by  this 
power,  to  confer,  or  to  withhold  favours  of  this  sort. 

^  788.  Those,  who  are  accustomed  lo  profound  re- 
flection upon  the  human  character  and  human  experi- 
ence, will  readily  adopt  the  opinion,  that  one  man  of 
discernment  is  better  fitted  to  analyze  and  estimate 
the  peculiar  qualities,  adapted  to  particular  oflices, 
than  any  body  of  men  of  equal,  or  even  of  superior 
discernment.  His  sole  and  undivided  responsibility 
will  naturally  beget  a  livelier  sense  of  duty,  and  a 
more  exact  regard  to  reputation.  He  will  inquire 
with  more  earnestness,  and  decide  with  more  impar- 
tiality. He  will  have  fewer  personal  attachments  to 
gratify,  than  a  body  of  men  ;  and  will  be  less  liable 
to  be  misled  by  his  private  friendships  and  affections  ; 
or,  at  all  events,  his  conduct  will  be  more  open  to 
scrutiny,  and  less  liable  to  be  misunderstood.  If  he 
ventures  upon  a  system  of  favoritism,  he  will  not 
escape  censure,  and  can  scarcely  avoid  public  detec- 
tion and  disgrace.  But  in  a  public  body  appointments 
will  be  materially  influenced  by  party  attachments  and 
dislikes  ;  by  private  animosities,  and  antipathies,  and 
partialities  ;  and  will  be  generally  founded  in  compro- 
mises, having  little  to  do  with  the  merit  of  candidates, 
and  much  to  do  with  the  selfish  interests  of  individuals 
and  cabals.  They  will  be  too  much  governed  by  local, 
Abr.  71 


562     CONSTITUTION  OF  THE  U.  STATES.  [BOOK  III. 

or  sectional,  or  party  arrangements.  A  president, 
chosen  from  the  nation  at  large,  may  well  be  presumed 
to  possess  high  intelligence,  integrity,  and  sense  of 
character.  He  will  be  compelled  to  consult  public 
opinion  in  the  most  important  appointments  ;  and 
must  be  interested  to  vindicate  the  propriety  of  his 
appointments  by  selections  from  those,  whose  qualifi- 
cations are  unquestioned,  and  unquestionable.  If  he 
should  act  otherwise,  and  surrender  the  public  patron- 
age into  the  hands  of  profligate  men,  or  low  adven- 
turers, it  will  be  impossible  for  him  long  to  retain 
public  favour.  Nothing,  no,  not  even  the  whole  in- 
fluence of  party,  could  long  screen  him  from  the  just 
indignation  of  the  people.  Though  slow,  the  ultimate 
award  of  popular  opinion  would  stamp  upon  his  con- 
duct its  merited  infamy.  No  president,  however 
weak,  or  credulous,  (if  such  a  person  could  ever  under 
any  conjuncture  of  circumstances  obtain  the  office,) 
would  fail  to  perceive,  or  to  act  upon  admonitions  of 
this  sort.  At  all  events,  he  would  be  less  likely  to 
disregard  them,  than  a  large  body  of  men,  who  would 
share  the  responsibility,  and  encourage  each  other  in 
the  division  of  the  patronage  of  the  government. 

^  789.  But,  though  these  general  considerations 
might  easily  reconcile  us  to  the  choice  of  vesting  the 
power  of  appointment  exclusively  in  the  president,  in 
preference  to  the  senate,  or  house  of  representatives 
alone  ;  yet  the  patronage  of  the  government,  and  the 
appointments  to  office  are  too  important  to  the  public 
welfare,  not  to  induce  great  hesitation  in  vesting  them 
exclusively  in  the  president.  The  power  may  be 
abused  ;  and,  assuredlj^,  it  will  be  abused,  except  in 
the  hands  of  an  executive  of  great  firmness,  indepen- 
dence, integrity,  and  public  spirit.     It  should   never 


CH.  XXXVII.]     EXECUTIVE APPOINTMENTS.  563 

be  forgotten,  that  in  a  republican  government  offices 
are  established,  and  are  to  be  filled,  not  to  gratify 
private  interests  and  private  attachments  ;  not  as  a 
means  of  corrupt  influence,  or  individual  profit ;  not 
for  cringing  favourites,  or  court  sycophants  ;  but  for 
purposes  of  the  highest  public  good  ;  to  give  dignity, 
strength,  purity,  and  energy  to  the  administration  of 
the  lav^s.  It  would  not,  therefore,  be  a  wise  course 
to  omit  any  precaution,  which,  at  the  same  time,  that 
it  should  give  to  the  president  a  power  over  the  ap- 
pointments of  those,  who  are  in  conjunction  with  him- 
self to  execute  the  laws,  should  also  interpose  a  salu- 
tary check  upon  its  abuse,  acting  by  way  of  preven- 
tive, as  well  as  of  remedy. 

^  790.  Happily,  this  difficult  task  has  been  achieved 
by  the  constitution.  The  president  is  to  nominate, 
and  thereby  has  the  sole  power  to  select  for  office  ; 
but  his  nomination  cannot  confer  office,  unless  ap- 
proved by  a  majority  of  the  senate.  His  responsibility 
and  theirs  is  thus  complete,  and  distinct.  He  can 
never  be  compelled  to  yield  to  their  appointment  of 
a  man  unfit  for  office  ;  and,  on  the  other  hand,  they 
may  withhold  their  advice  and  consent  from  any  can- 
didate, who  in  their  judgment  does  not  possess  due 
qualifications  for  office.  Thus,  no  serious  abuse  of 
the  power  can  take  place  without  the  co-operation  of 
two  co-ordinate  branches,  of  the  government,  acting 
in  distinct  spheres  ;  and,  if  there  should  be  any  im- 
proper concession  on  either  side,  it  is  obvious,  that 
from  the  structure  and  changes,  incident  to  each  de- 
partment, the  evil  cannot  long  endure,  and  will  be 
remedied,  as  it  should  be,  by  the  elective  franchise. 
The  consciousness  of  this  check  will  make  the  presi- 
dent more  circumspect,  and  deliberate  in  his  nomina- 


564     CONSTITUTION  OF  THE  U.  STATES.  [BOOK  III. 

tions  for  office.  He  will  feel,  that,  in  case  of  a  disa- 
greement of  opinion  with  the  senate,  his  principal 
vindication  must  depend  upon  the  unexceptionable 
character  of  his  nomination.  And  in  case  of  a  rejec- 
tion, the  most,  that  can  be  said,  is,  that  he  had  not 
his  first  choice.  He  will  still  have  au  wide  range  of 
selection  ;  and  his  responsibility  to  present  another 
candidate,  entirely  qualified  for  the  office,  will  be  com- 
plete and  unquestionable. 

^791.  Nor  is  it  to  be  expected,  that  the  senate  will 
ordinarily  fail  of  ratifying  the  appointment  of  a  suita- 
ble person  for  the  office.  Independent  of  the  desire, 
w  hich  such  a  body  may  naturally  be  presumed  to  feel, 
of  having  offices  suitably  filled,  (when  they  cannot 
make  the  appointment  themselves,)  there  will  be  a 
responsibility  to  public  opinion  for  a  rejection,  which 
will  overcome  all  common  private  wishes.  Cases, 
indeed,  may  be  imagined,  in  which  the  senate  from 
party  motives,  from  a  spirit  of  opposition,  and  even 
from  motives  of  a  more  private  nature,  may  reject  a 
nomination  absolutely  unexceptionable.  But  such 
occurrences  w^U  be  rare.  The  more  common  error, 
(if  there  shall  be  any)  will  be  too  great  a  facility  to 
yield  to  the  executive  wishes,  as  a  means  of  personal, 
or  popular  favour.  A  president  will  rarely  want 
means,  if  he  shall  choose  to  use  them,  to  induce  some 
members  of  such  a  body  to  aid  his  nominations  ;  since 
a  correspondent  influence  may  be  fairly  presumed  to 
exist,  to  gratify  such  persons  in  other  recommendations 
for  office,  and  thus  to  make  them  indirectly  the  dis- 
pensers of  local  patronage.  It  will  be,  principally, 
with  regard  to  high  officers,  such  as  ambassadors, 
judges,  heads  of  departments,  and  other  appointments 
of  great  public  importance,  that  the  senate  will  inter- 


I 


CH.  XXXVII.]    EXECUTIVE APPOINTMENTS.  565 

pose  to  prevent  an  unsuitable  choice.  Their  own 
dignity,  and  sense  of  character,  their  duty  to  their 
country,  and  their  very  title  to  office,  will  be  materially 
dependent  upon  a  firm  discharge  of  their  duty  on  such 
occasions. 

^  792.  Perhaps  the  duties  of  the  president,  in  the 
discharge  of  this  most  delicate  and  important  duty  of 
his  office,  were  never  better  summed  up,  than  in  the 
following  language  of  a  distinguished  commentator. 
*'  A  proper  selection  or  appointment  of  subordinate 
officers  is  one  of  the  strongest  marks  of  a  powerful 
mind.  It  is  a  duty  of  the  president  to  acquire,  as  far 
as  possible,  an  intimate  knowledge  of  the  capacities 
and  characters  of  his  fellow  citizens  ;  to  disregard  the 
importunities  of  friends  ;  the  hints  or  menaces  of  ene- 
mies ;  the  bias  of  party  ;  and  the  hope  of  popularity. 
The  latter  is  sometimes  the  refuge  of  feeble-minded 
men  ;  but  its  gleam  is  transient,  if  it  is  obtained  by  a 
dereliction  of  honest  duty  and  sound  discretion.  Popu- 
lar favour  is  best  secured  by  carefully  ascertaining,  and 
strictly  pursuing  the  true  interests  of  the  people.  The 
president  himself  is  elected  on  the  supposition,  that  he 
is  the  most  capable  citizen  to  understand,  and  promote 
those  interests  ;  and  in  every  appointment  he  ought  to 
consider  himself  as  executing  a  public  trust  of  the 
same  nature.  Neither  should  the  fear  of  giving  offence 
to  the  public,  or  pain  to  the  individual,  deter  him  from 
the  immediate  exercise  of  his  power  of  removal,  on 
proof  of  incapacity,  or  infidelity  in  the  subordinate 
officer.  The  public,  uninformed  of  the  necessity,  may 
be  surprised,  and  at  first  dissatisfied  ;  but  public  ap- 
probation ultimately  accompanies  the  fearless  and  up- 
right discharge  of  duty." 

^  793.  The  other  part  of  the  clause,  while  it  leaves 


566 


CONSTITUTION    OF    THE    U.    STATES.      [bOOK  III. 


to  the  president  the  appointment  to  all  offices,  not 
otherwise  provided  for,  enables  congress  to  vest  the 
appointment  of  such  inferior  officers,  as  they  may  think 
proper,  in  the  president,  in  the  courts  of  law,  or  in  the 
heads  of  departments.  The  propriety  of  this  discre- 
tionary power  in  congress,  to  some  extent,  cannot  well 
be  questioned.  If  any  discretion  should  be  allowed, 
its  limits  could  hardly  admit  of  being  exactly  defined  ; 
and  it  might  fairly  be  left  to  congress  to  act  according 
to  the  lights  of  experience.  It  is  difficult  to  foresee, 
or  to  provide  for  all  the  combinations  of  circumstances, 
which  might  vary  the  right  to  appoint  in  such  cases. 
In  one  age  the  appointment  might  be  most  proper  in 
the  president ;  and  in  another  age,  in  a  department. 

^794.  In  the  practical  course  of  the  government, 
there  does  not  seem  to  have  been  any  exact  line  drawn, 
who  are,  and  who  are  not,  to  be  deemed  inferior  offi- 
cers in  the  sense  of  the  constitution,  whose  appoint- 
ment does  not  necessarily  require  the  concurrence  of 
the  senate.  In  many  cases  of  appointments,  congress 
have  required  the  concurrence  of  the  senate,  where, 
perhaps,  it  might  not  be  easy  to  say,  that  it  was  re- 
quired by  the  constitution.  The  power  of  congress 
has  been  exerted  to  a  great  extent,  under  this  clause, 
in  favour  of  the  executive  department.  The  president 
is  by  law  invested,  either  solely,  or  with  the  senate, 
with  the  appointment  of  all  military  and  naval  officers, 
and  of  the  most  important  civil  officers,  and  especially 
of  those  connected  with  the  administration  of  justice, 
the  collection  of  the  revenue,  and  the  supplies  and  ex- 
penditures of  the  nation.  The  courts  of  the  Union 
possess  the  narrow  prerogative  of  appointing  their  own 
clerk,  and  reporter,  without  any  farther  patronage.  The 
heads  of  department  are,  in  like  manner,  generally  en- 


CH.    XXXVII.]       EXECUTIVE APPOINTMENTS.  567 

titled  to  the  appointment  of  the  clerks  in  their  respec- 
tive offices.  But  the  great  anomaly  in  the  system  is 
the  enormous  patronage  of  the  postmaster  general,  who 
is  invested  with  the  sole  and  exclusive  authority  to 
appoint,  and  remove  all  deputy  post-masters  ;  and 
whose  power  and  influence  have  thus,  by  slow  degrees, 
accumulated,  until  it  is,  perhaps,  not  too  much  to  say, 
that  it  rivals,  if  it  does  not  exceed,  in  value  and  extent, 
that  of  the  president  himself.  How  long  a  power  so 
vast,  and  so  accumulating,  shall  remain  without  any 
check  on  the  part  of  any  other  branch  of  the  govern- 
ment, is  a  question  for  statesmen,  and  not  for  jurists. 
But  it  cannot  be  disguised,  that  it  will  be  idle  to  impose 
constitutional  restraints  upon  high  executive  appoint- 
ments, if  this  power,  which  pervades  every  village  of 
the  republic,  and  exerts  an  irresistible,  though  silent, 
influence  in  the  direct  shape  of  office,  or  in  the  no  less 
inviting  form  of  lucrative  contracts,  is  suflered  to  remain 
without  scrutiny  or  rebuke.  It  furnishes  no  argument 
against  the  interposition  of  a  check,  which  shall  re- 
quire the  advice  and  consent  of  the  senate  to  appoint- 
ments, that  the  power  has  not  hitherto  been  abused. 
In  its  own  nature,  the  post-office  establishment  is  sus- 
ceptible of  abuse  to  such  an  alarming  degree  ;  the 
whole  correspondence  of  the  country  is  so  completely 
submitted  to  the  fidelity  and  integrity  of  the  agents, 
who  conduct  it ;  and  the  means  of  making  it  subservi- 
ent to  mere  state  policy  are  so  abundant,  that  the  only 
surprise  is,  that  it  has  not  already  awakened  the  public 
jealousy,  and  been  placed  under  more  eflectual  control. 
It  may  be  said,  without  the  slightest  disparagement  of 
any  officer,  who  has  presided  over  it,  that  if  ever  the 
people  are  to  be  corrupted,  or  their  liberties  are  to  be 
prostrated,  this  establishment  will  furnish  the  most  fa- 


568  CONSTITUTION    OF    THE    U.    STATES.     [bOOK  III. 

cile  means,  and  be  the  easiest  employed  to  accomplish 
such  a  purpose. 

^  795.  It  is  observable,  that  the  constitution  makes 
no  mention  of  any  power  of  removal  by  the  executive 
of  any  officers  whatever.  As,  however,  the  tenure  of 
office  of  no  officers,  except  those  in  the  judicial  depart- 
ment, is,  by  the  constitution,  provided  to  be  during 
good  behaviour,  it  follows  by  irresistible  inference, 
that  all  others  must  hold  their  offices  during  pleasure, 
unless  congress  shall  have  given  some  other  duration  to 
their  office.  As  far  as  congress  constitutionally  possess 
the  power  to  regulate,  and  delegate  the  appointment 
of  *'  inferior  officers,"  so  far  they  may  prescribe  the 
term  of  office,  the  manner  in  which,  and  the  persons  by 
whom,  the  removal,  as  well  as  the  appointment  to  office, 
shall  be  made.  But  two  questions  naturally  occur 
upon  this  subject.  The  first  is,  to  whom,  in  the  ab- 
sence of  all  such  legislation,  does  the  power  of  remo- 
val belong?  to  the  appointing  power,  or  to  the  execu- 
tive ?  to  the  president  and  senate,  who  have  concur- 
red in  the  appointment,  or  to  the  president  alone? 
The  next  is,  if  the  power  of  removal  belongs  to  the 
executive,  in  regard  to  any  appointments  confided  by 
the  constitution  to  him  ;  whether  congress  can  give 
any  duration  of  office  in  such  cases,  not  subject  to  the 
exercise  of  this  power  of  removal  ?  Hitherto  the  latter 
has  remained  a  merely  speculative  question,  as  all  our 
legislation,  giving  a  limited  duration  to  office,  recog- 
nises the  executive  power  of  removal,  as  in  full  force. 

^  796.  The  other  is  a  vastly  important  practical 
question  ;  and,  in  an  early  stage  of  the  government, 
underwent  a  most  elaborate  discussion.  The  language 
of  the  constitution  is,  that  the  president  "shall  nomin- 
"  ate,  and,  by  and  with  the  advice  and  consent  of  the 


CH.  XXXVn.]         EXECUTIVE REMOVALS.  569 

"  senate,  appoint, "  &c.  The  power  to  nominate  does 
not  naturally,  or  necessarily  include  the  power  to  re- 
move ;  and  if  the  power  to  appoint  does  include  it,  then 
the  latter  belongs  conjointly  to  the  executive  and  the 
senate.  In  short,  under  such  circumstances,  the  remo- 
val takes  place  in  virtue  of  the  new  appointment,  by 
mere  operation  of  law.  It  results,  and  is  not  separa- 
ble from  the  appointment  itself. 

§  797.  This  was  the  doctrine  maintained  with  great 
earnestness  by  the  Federalist;  and  it  had  a  most 
material  tendency  to  quiet  the  just  alarms  of  the 
overwhelming  influence,  and  arbitrary  exercise  of  this 
prerogative  of  the  executive,  which  might  prove  fatal 
to  the  personal  independence,  and  freedom  of  opinion 
of  public  officers,  as  well  as  to  the  public  liberties  of 
the  country.  Indeed,  it  is  utterly  impossible  not  to 
feel,  that,  if  this  unlimited  power  of  removal  does  exist, 
it  may  be  made,  in  the  hands  of  a  bold  and  designing 
man,  of  high  ambition,  and  feeble  principles,  an  instru- 
ment of  the  worst  oppression,  and  most  vindictive 
vengeance.  Even  in  monarchies,  while  the  councils 
of  state  are  subject  to  perpetual  fluctuations  and  chan- 
ges, the  ordinary  officers  of  the  government  are  per- 
mitted to  remain  in  the  silent  possession  of  their 
offices,  undisturbed  by  the  policy,  or  the  passions  of 
the  favourites  of  the  court.  But  in  a  republic,  where 
freedom  of  opinion  and  action  are  guaranteed  by  the 
very  first  principles  of  the  government,  if  a  successful 
party  may  first  elevate  their  candidate  to  office,  and  then 
make  him  the  instrument  of  their  resentments,  or  their 
mercenary  bargains  ;  if  men  may  be  made  spies  upon 
the  actions  of  their  neighbours,  to  displace  them  from 
office  ;  or  if  fawning  sycophants  upon  the  popular  lead- 
er of  the  day  may  gain  his  patronage,  to  the  exclusion 

Abr.  72 


570     CONSTITUTION  OF  THE  U.  STATES.  [BOOK  111. 

worthier  and  abler  men,  it  is  most  manifest,  that 
elections  will  be  corrupted  at  the  very  source  ;  and 
those,  who  seek  office,  will  have  every  motive  to  de- 
lude, and  deceive  the  people.  It  was  not,  therefore, 
without  reason,  that,  in  the  animated  discussion  already 
alluded  to,  it  was  urged,  that  the  power  of  removal 
was  incident  to  the  power  of  appointment.  That  it 
would  be  a  most  unjustifiable  construction  of  the  con- 
stitution, and  of  its  implied  powers,  to  hold  otherwise. 
That  such  a  prerogative  in  the  executive  was  in  its 
own  nature  monarchical  and  arbitrary ;  and  eminent- 
ly dangerous  to  the  best  interests,  as  well  as  to  the  lib- 
erties, of  the  country.  It  would  convert  all  the  officers 
of  the  country  into  the  mere  tools  and  creatures  of  the 
president.  A  dependence  so  servile,  on  one  individ- 
ual, would  deter  men  of  high  and  honorable  minds 
from  engaging  in  the  public  service.  And  if,  contra- 
ry to  expectation,  such  men  should  be  brought  into 
office,  they  would  be  reduced  to  the  necessity  of  sac- 
rificing every  principle  of  independence  to  the  will  of 
the  chief  magistrate,  or  of  exposing  themselves  to  the 
disgrace  of  being  removed  from  office,  and  that  too  at 
a  time,  when  it  might  no  longer  be  in  their  power  to 
engage  in  other  pursuits. 

^  798.  On  the  other  hand,  those,  who  after  the 
adoption  of  the  constitution  held  the  doctrine,  (for  be- 
fore that  period  it  never  appears  to  have  been  avowed 
by  any  of  its  friends,  although  it  was  urged  by  its  op- 
ponents, as  a  reason  for  rejecting  it,)  that  the  power 
of  removal  belonged  to  the  president,  argued,  that  it 
resulted  from  the  nature  of  the  power,  and  the  con- 
venience, and  even  necessity  of  its  exercise.  It  was 
clearly  in  its  nature  a  part  of  the  executive  power,  and 
was  indispensable  for  a  due  execution  of  the  laws,  and 


CH.  XXXVII.]  EXECUTIVE REMOVALS.  571 

a  regular  administration  of  the  public  affairs.  What 
would  become  of  the  public  interests,  if  during  the 
recess  of  the  senate  the  president  could  not  remove  an 
unfaithful  public  officer  ?  If  he  could  not  displace  a 
corrupt  ambassador,  or  head  of  department,  or  oth- 
er officer  engaged  in  the  finances,  or  expenditures 
of  the  government  ?  If  the  executive,  to  prevent  a 
non-execution  of  the  laws,  or  a  non-performance  of 
his  own  proper  functions,  had  a  right  to  suspend  an 
unworthy  officer  from  office,  this  power  was  in  no  re- 
spect distinguishable  from  a  power  of  removal.  In 
fact,  it  is  an  exercise,  though  in  a  more  moderated 
form,  of  the  same  power.  Besides ;  it  was  argued, 
that  the  danger,  that  a  president  would  remove  good 
men  from  office  was  wholly  imaginary.  It  was  not 
by  the  splendour  attached  to  the  character  of  a  par- 
ticular president,  like  Washington,  that  such  an  opinion 
was  to  be  maintained.  It  was  founded  on  the  struc- 
ture of  the  office.  The  man,  in  whose  favour  a  ma- 
jority of  the  people  of  the  United  States  would  unite,  to 
elect  him  to  such  an  office,  had  every  probability  at  least 
in  favour  of  his  principles.  He  must  be  presumed  to 
possess  integrity,  independence,  and  high  talents.  It 
would  be  impossible,  that  he  should  abuse  the  patron- 
age of  the  government,  or  his  power  of  removal,  to  the 
base  purposes  of  gratifying  a  party,  or  of  ministering  to 
his  own  resentments,  or  of  displacing  upright  and  ex- 
cellent officers  for  a  mere  difference  of  opinion.  The 
public  odium,  which  would  inevitably  attach  to  such 
conduct,  would  be  a  perfect  security  against  it.  And, 
in  truth,  removals  made  from  such  motives,  or  with  a 
view  to  bestow  the  offices  upon  dependents,  or  favour- 
ites, would  be  an  impeachable  offence. 

^  799.  That  the  final  decision  of  this  question  in 


572     CONSTITUTION  OF  THE  U.  STATES.  [BOOK  III. 

favour  of  the  executive  power  of  removal,  w^as  great- 
ly influenced  by  the  exalted  character  of  the  presi- 
dent, then  in  office,  vv^as  asserted  at  the  time,  and  has 
always  been  believed.  Yet  the  doctrine  was  oppos- 
ed, as  well  as  supported,  by  the  highest  talents  and 
patriotism  of  the  country.  The  public,  however,  ac- 
quiesced in  this  decision ;  and  it  constitutes,  perhaps, 
the  most  extraordinary  case  in  the  history  of  the  gov- 
ernment of  a  power,  conferred  by  implication  on  the 
executive,  by  the  assent  of  a  bare  majority  of  congress, 
which  has  not  been  questioned  on  many  other  occasions. 
Even  the  most  jealous  advocates  of  state  rights  seem 
to  have  slumbered  over  this  vast  reach  of  authority  ; 
and  have  left  it  untouched,  as  the  neutral  ground  of 
controversy,  in  which  they  desired  to  reap  no  harvest, 
and  from  which  they  retired  without  leaving  any  pro- 
testations of  title  or  contest. 

§  800.  Whether  the  predictions  of  the  original  ad- 
vocates of  the  executive  power,  or  those  of  the  oppos- 
ers  of  it,  are  likely,  in  the  future  progress  of  the  gov- 
ernment, to  be  realized,  must  be  left  to  the  sober  judg- 
ment of  the  community,  and  to  the  impartial  award  of 
time.     If  there  has  been  any  aberration  from  the  true 
constitutional   exposition   of  the   power  of  removal, 
which    the    reader  must  decide  for  himself,  it  will    be 
difficult,  and  perhaps  impracticable,  after  forty  years' 
experience,  to  recall  the  practice  to  the  correct  theory. 
But  at  all  events,  it  will  be  a  consolation  to  those,  who 
love  the  Union,  and  honour  a  devotion  to  the  patriotic 
discharge  of  duty,  that  in  regard  to  "  inferior  officers," 
which  appellation  probably  includes  ninety-nine  out  of 
a  hundred  of  the  lucrative    offices  in  the  government, 
the  remedy  for  any  permanent  abuse  is  still  within  the 
power  of  congress,  by  the  simple  expedient  of  requir- 


CH.    XXXVII.]       EXECUTIVE APPOINTMENTS.  573 

irig  the  consent  of  the  senate  to  removals  in  such 
cases. 

^  801.  Another  point  of  great  practical  importance 
is,  w^hen  the. appointment  of  any  officer  is  to  be  deem- 
ed complete.  It  vv^ill  be  seen  in  a  succeeding  clause, 
that  the  president  is  to  "  commission  all  the  officers  of 
"the  United  States."  In  regard  to  officers,  who  are 
removable  at  the  will  of  the  executive,  the  point  is  un- 
important, since  they  may  be  displaced,  and  their  com- 
mission arrested  at  any  moment.  But  if  the  officer  is 
not  so  removable,  the  time,  when  the  appointment  is 
complete,  becomes  of  very  deep  interest. 

§  802.  This  subject  was  very  elaborately  discussed 
in  the  celebrated  case  of  Marbury  v.  Madison,  Upon 
the  fullest  deliberation,  the  court  were  of  opinion, 
that,  when  a  commission  has  been  signed  by  the  pres- 
ident, the  appointment  is  final  and  complete.  The 
officer  appointed  has  then  conferred  on  him  legal  rights, 
which  cannot  be  resumed.  Until  that  period,  the  dis- 
cretion of  the  president  may  be  exercised  by  him,  as 
to  the  appointment;  but,  from  that  moment,  it  is  irre- 
vocable. His  power  over  the  office  is  then  terminat- 
ed in  all  cases,  where  by  law  the  officer  is  not  remov- 
able by  him.  The  right  to  the  office  is  then  in  the  per- 
son appointed,  and  he  has  the  absolute,  unconditional 
power  of  accepting,  or  rejecting  it.  Neither  a  delivery 
of  the  commission,  nor  an  actual  acceptance  of  the 
office,  is  indispensable  to  make  the  appointment  perfect. 

^  803.  The  next  clause  of  the  constitution  is,  "  The 
"  president  shall  have  power  to  fill  up  all  vacancies,  that 
"  may  happen  during  the  recess  of  the  senate,  by  grant- 
"  ing  commissions,  which  shall  expire  at  the  end  of 
"  their  next  session." 

^  804.  The  propriety  of  this  grant  is  so  obvious. 


574     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

that  it  can  require  no  elucidation.  There  was  but  one 
of  two  courses  to  be  adopted  ;  either,  that  the  senate 
should  be  perpetually  in  session,  in  order  to  provide 
for  the  appointment  of  officers  ;  or,  that  the  president 
should  be  authorized  to  make  temporary  appointments 
during  the  recess,  which  should  expire,  when  the  senate 
should  have  had  an  opportunity  to  act  on  the  subject. 
The  former  course  would  have  been  at  once  burthen- 
some  to  the  senate,  and  expensive  to  the  public.  The 
latter  combines  convenience,  promptitude  of  action, 
and  general  security. 

§  805.  The  appointments  so  made,  by  the  very  lan- 
guage of  the  constitution,  expire  at  the  next  session  of 
the  senate;  and  the  commissions  given  by  the  President 
have  the  same  duration.  When  the  senate  is  assembled, 
if  the  president  nominates  the  same  officer  to  the  office, 
this  is  to  all  intents  and  purposes  a  new  nomination  to 
office  ;  and,  if  approved  by  the  senate,  the  appoint- 
ment is  a  new  appointment,  and  not  a  mere  continua- 
tion of  the  old  appointment.  So  that,  if  a  bond  for 
fidelity  in  office  has  been  given  under  the  first  appoint- 
ment and  commission,  it  does  not  apply  to  any  acts 
done  under  the  new  appointment  and  commission. 

§  806.  The  next  section  of  the  second  article  is, 
"  He  (the  president)  shall  from  time  to  time  give  to 
"  the  congress  information  of  the  state  of  the  Union, 
"  and  recommend  to  their  consideration  such  measures, 
*'  as  he  shall  judge  necessary  and  expedient.  He  may, 
"  on  extraordinary  occasions,  convene  both  houses,  or 
"  either  of  them,  and,  in  case  of  a  disagreement  be- 
*'  tween  them,  with  respect  to  the  time  of  adjourn- 
''  ment,  he  may  adjourn  them  to  such  time,  as  he  shall 
"think  proper.  He  shall  receive  ambassadors,  and 
"  other  public  ministers.     He  shall  take  care,  that  the 


4 


CH.  XXXVII.]  EXECUTIVE  —  DUTIES.  575 

"  laws  be  faithfully  executed  ;  and  shall  commission 
"  all  the  officers  of  the  United  States." 

^  807.  The  first  part,  relative  to  the  president's 
giving  information  and  recommending  measures  to 
congress,  is  so  consonant  w^ith  the  structure  of  the 
executive  department  of  the  colonial  and  state  gov- 
ernments, with  the  usages  and  practice  of  other  free 
governments,  with  the  general  convenience  of  congress, 
and  with  a  due  share  of  responsibility  on  the  part  of 
the  executive,  that  it  may  well  be  presumed  to  be 
above  all  real  objection.  From  the  nature  and  duties 
of  the  executive  department,  he  must  possess  more 
extensive  sources  of  information,  as  well  in  regard  to 
domestic  as  foreign  affairs,  than  can  belong  to  congress. 
The  true  workings  of  the  laws  ;  the  defects  in  the 
nature  or  arrangements  of  the  general  systems  of  trade, 
finance,  and  justice  ;  and  the  military,  naval,  and  civil 
establishments  of  the  Union,  are  more  readily  seen, 
and  more  constantly  under  the  view  of  the  executive, 
than  they  can  possibly  be  of  any  other  department. 
There  is  great  v^isdom,  therefore,  in  not  merely  allow- 
ing, but  in  requiring,  the  president  to  lay  before  con- 
gress all  facts  and  information,  which  may  assist  their 
deliberations  ;  and  in  enabling  him  at  once  to  point 
out  the  evil,  and  to  suggest  the  remedy.  He  is  thus 
Justly  made  responsible,  not  merely  for  a  due  admin- 
istration of  the  existing  systems,  but  for  due  diligence 
and  examination  into  the  means  of  improving  them. 

§  808.  The  power  to  convene  congress  on  extraor- 
dinary occasions  is  indispensable  to  the  proper  opera- 
tions, and  even  safety  of  the  government.  Occasions 
may  occur  in  the  recess  of  congress,  requiring  the 
government  to  take  vigorous  measures  to  repel  foreign 
aggression,  depredations,   and    direct   hostilities ;    to 


676         CONSTITUTION    OF    THE    U.    STATES.      [bOOK  III. 

provide  adequate  means  to  mitigate,  or  overcome  un- 
expected calamities  ;  to  suppress  insurrections  ;  and 
to  provide  for  innumerable  other  important  exigencies, 
arising  out  of  the  intercourse  and  revolutions  among 
nations. 

§  809.  The  power  to  adjourn  congress  in  cases  of 
disagreement  is  equally  indispensable  ;  since  it  is  the 
only  peaceable  way  of  terminating  a  controversy, 
which  can  lead  to  nothing  but  distraction  in  the  public 
councils. 

^  810.  On  the  other  hand,  the  duty  imposed  upon 
him  to  take  care,  that  the  laws  be  faithfully  executed, 
follows  out  the  strong  injunctions  of  his  oath  of  office, 
that  he  will  "  preserve^  protect,  and  defend  the  consti- 
tution." The  great  object  of  the  executive  department 
is  to  accomplish  this  purpose  ;  and  without  it,  be  the 
form  of  government  whatever  it  may,  it  will  be  utterly 
worthless  for  offence,  or  defence  ;  for  the  redress  of 
grievances,  or  the  protection  of  rights  ;  for  the  happi- 
ness, or  good  order,  or  safety  of  the  people. 

^811.  The  next  power  is  to  receive  ambassadors  and 
other  public  ministers.  This  subject  has  been  already 
incidentally  touched.  A  similar  power  existed  under 
the  confederation  ;  but  it  was  confined  to  receiving 
"  ambassadors,"  which  word,  in  a  strict  sense,  (as  has 
been  already  stated,)  comprehends  the  highest  grade 
only  of  ministers,  and  not  those  of  an  inferior  character. 
The  policy  of  the  United  States  would  ordinarily  pre- 
fer the  employment  of  the  inferior  grades  ;  and  there- 
fore the  description  is  properly  enlarged,  so  as  to  in- 
clude all  classes  of  ministers.  Why  the  receiving  of 
consuls  was  not  also  expressly  mentioned,  as  the  ap- 
pointment of  them  is  in  the  preceding  clause,  is  not 
easily  to  be  accounted  for,  especially  as  the  defect  of 


1 


CH.  XXXVII.]         EXECUTIVE  —  POWERS.  577 

the  confederation  on  this  head  was  fully  understood 
The  power,  however,  may  be  fairly  inferred  from  other 
parts  of  the  constitution  ;  and  indeed  seems  a  general 
incident  to  the  executive  authority.  It  has  constantly 
been  exercised  without  objection  ;  and  foreign  consuls 
have  never  been  allowed  to  discharge  any  functions  of 
office,  until  they  have  received  the  exequatur  of  the 
president.  Consuls,  indeed,  are  not  diplomatic  func- 
tionaries, or  political  representatives  of  a  foreign  nation  ; 
but  are  treated  in  the  character  of  mere  commercial 
agents. 

^812.  The  power  to  receive  ambassadors  and  min- 
isters is  always  an  important,  and  sometimes  a  very 
delicate  function  ;  since  it  constitutes  the  only  accred- 
ited medium,  through  which  negotiations  and  friendly 
relations  are  ordinarily  carried  on  with  foreign  powers. 
A  government  may  in  its  discretion  lawfully  refuse  to 
receive  -an  ambassador,  or  other  minister,  without  its 
affording  any  just  cause  of  war.  But  it  would  gener- 
ally be  deemed  an  unfriendly  act,  and  might  provoke 
hostilities,  unless  accompanied  by  conciliatory  expla- 
nations. A  refusal  is  sometimes  made  upon  the  ground 
of  the  bad  character  of  the  minister,  or  his  former  of- 
fensive conduct,  or  of  the  special  subject  of  the  em- 
bassy not  being  proper,  or  convenient  for  discussion. 
This,  however,  is  rarely  done.  But  a  much  more 
delicate  occasion  is,  when  a  civil  war  breaks  out  in  a 
nation,  and  two  nations  are  formed,  or  two  parties  in 
the  same  nation,  each  claiming  the  sovereignty  of  the 
whole,  and  the  contest  remains  as  yet  undecided, 
flagrante  hello.  In  such  a  case  a  neutral  nation  may 
very  properly  withhold  its  recognition  of  the  supremacy 
of  either  party,  or  of  the  existence  of  two  independent 
nations  ;  and  on  that  account  refuse  to  receive  an  am- 

Abr.  73 


578  CONSTITUTION    OF   THE    U.    STATES.    [bOOK  III. 

bassador  from  either.  It  is  obvious,  that  in  such  cases 
the  simple  acknowledgment  of  the  minister  of  either 
party,  or  nation,  might  be  deemed  taking  part  against 
the  other ;  and  thus  as  affording  a  strong  countenance, 
or  opposition,  to  rebellion  and  civil  dismemberment. 
On  this  account,  nations,  placed  in  such  a  predicament, 
have  not  hesitated  sometimes  to  declare  war  against 
neutrals,  as  interposing  in  the  war  ;  and  have  made 
them  the  victims  of  their  vengeance,  when  they  have 
been  anxious  to  assume  a  neutral  position.  The  ex- 
ercise of  this  prerogative  of  acknowledging  new  na- 
tions, or  ministers,  is,  therefore,  under  such  circum- 
stances, an  executive  function  of  great  delicacy,  which 
requires  the  utmost  caution  and  deliberation.  If  the 
executive  receives  an  ambassador,  or  other  minister, 
as  the  representative  of  a  new  nation,  or  of  a  party  in 
a  civil  war  in  an  old  nation,  it  is  an  acknowledgment 
of  the  sovereign  authority  de  facto  of  such  new  nation, 
or  party.  If  such  recognition  is  made,  it  is  conclusive 
upon  the  nation,  unless,  indeed,  it  can  be  reversed  by 
an  act  of  congress  repudiating  it.  If,  on  the  other 
hand,  such  recognition  has  been  refused  by  the  execu- 
tive, it  is  said,  that  congress  may,  notwithstanding, 
solemnly  acknowledge  the  sovereignty  of  the  nation, 
or  party.  These,  however,  are  propositions,  which 
have  hitherto  remained,  as  abstract  statements  under 
the  constitution  ;  and,  therefore,  can  be  propounded, 
not  as  absolutely  true,  but  as  still  open  to  discussion, 
if  they  should  ever  arise  in  the  course  of  our  foreign 
diplomacy.  The  constitution  has  expressly  invested 
the  executive  with  power  to  receive  ambassadors,  and 
pther  ministers.  It  has  not  expressly  invested  con- 
gress with  the  power,  either  to  repudiate,  or  acknowl- 
edge them.     At  all  events,  in  the  case  of  a  revolution, 


CH.  XXXVII.]    EXECUTIVE. INCIDENTAL  POWERS.     579 

or  dismemberment  of  a  nation,  the  judiciary  cannot 
take  notice  of  any  new  government,  or  sovereignty, 
until  it  has  been  duly  recognised  by  some  other  de- 
partment of  the  government,  to  whom  the  power  is 
constitutionally  confided. 

^813.  As  incidents  to  the  power  to  receive  am- 
bassadors and  foreign  ministers,  the  president  is  un- 
derstood to  possess  the  power  to  refuse  them,  and  to 
dismiss  those,  who,  having  been  received,  become  ob- 
noxious to  censure,  or  unfit  to  be  allowed  the  privilege, 
by  their  improper  conduct,  or  by  political  events. 
While,  however,  they  are  permitted  to  remain,  as 
public  functionaries,  they  are  entitled  to  all  the  im- 
munities and  rights,  which  the  law  of  nations  has  pro- 
vided at  once  for  their  dignity,  their  independence, 
and  their  inviolability. 

^814.  There  are  other  incidental  powers,  belong- 
ing to  the  executive  department,  which  are  necessarily 
implied  from  the  nature  of  the  functions,  which  are 
confided  to  it.  Among  these  must  necessarily  be  in- 
cluded the  power  to  perform  them,  without  any  ob- 
struction or  impediment  whatsoever.  The  president 
cannot,  therefore,  be  liable  to  arrest,  imprisonment,  or 
detention,  while  he  is  in  the  discharge  of  the  duties  of 
his  office  ;  and  for  this  purpose  his  person  must  be 
deemed,  in  civil  cases  at  least,  to  possess  an  official 
inviolability.  In  the  exercise  of  his  political  powers 
he  is  to  use  his  own  discretion,  and  is  accountable 
only  to  his  country,  and  to  his  own  conscience.  His 
decision,  in  relation  to  these  powers,  is  subject  to  no 
control ;  and  his  discretion,  when  exercised,  is  con- 
clusive. But  he  has  no  authority  to  control  other 
officers  of  the  government,  in  relation  to  the  duties 
imposed  upon  them  by  law,  in  cases  not  touching  his 
political  powers. 


680  CONSTITUTION    OF    THE    U.    STATES.    [bOOK  III. 

§  815.  We  have  seen,  that  by  law  the  president 
possesses  the  right  to  require  the  written  advice  and 
opinions  of  his  cabinet  ministers,  upon  all  questions 
connected  with  their  respective  departments.  But, 
he  does  not  possess  a  like  authority,  in  regard  to  the 
judicial  department.  That  branch  of  the  government 
can  be  called  upon  only  to  decide  controversies, 
brought  before  them  in  a  legal  form  ;  and  therefore 
is  bound  to  abstain  from  any  extra-judicial  opinions 
upon  points  of  law,  even  though  solemnly  requested 
by  the  executive. 

^  816.  The  remaining  section  of  the  fourth  article, 
declaring  that  the  President,  Vice-President,  and  all 
civil  officers  of  the  United  States  shall  be  liable  to 
impeachment,  has  been  already  fully  considered  in  an- 
other place.  And  thus  is  closed  the  examination  of 
the  rights,  powers,  and  duties  of  the  executive  depart- 
ment. Unless  my  judgment  has  been  unduly  biassed, 
I  think  it  will  be  found  impossible  to  hold  from  this 
part  of  the  constitution  a  tribute  of  profound  respect, 
if  not  of  the  liveliest  admiration.  All,  that  seems 
desirable,  in  order  to  gratify  the  hopes,  secure  the 
reverence,  and  sustain  the  dignity  of  the  nation,  is, 
that  the  office  should  always  be  occupied  by  a  man  of 
elevated  talents,  of  ripe  virtues,  of  incorruptible  in- 
tegrity, and  of  tried*patriotism  ;  one,  who  shall  forget 
his  own  interests,  and  remember,  that  he  represents 
not  a  party,  but  the  whole  nation  ;  one,  whose  fame 
may  be  rested  with  posterity,  not  upon  the  false  eulo- 
gies of  favourites,  but  upon  the  solid  merit  of  having 
preserved  the  glory,  and  enhanced  the  prosperity  of 
the  country. 


CH.  XXXVIII.]    JUDICIARY IMPORTANCE  OF.  581 

CHAPTER   XXXVIII. 

JUDICIARY ORGANIZATION  AND  POWERS. 

§  817.  The  order  of  the  subject  next  conducts  us 
to  the  consideration  of  the  third  article  of  the  constitu- 
tion, which  embraces  the  organization  and  powers  of 
the  judicial  department. 

<^  818.  The  importance  of  the  establishment  of  a 
judicial  department  in  the  national  government  has 
been  already  incidentally  discussed  under  other  heads. 
The  want  of  it  constituted  one  of  the  vital  defects  of 
the  confederation.  And  every  government  must,  in  its 
essence,  be  unsafe  and  unfit  for  a  free  people,  where 
such  a  department  does  not  exist,  with  powers  co-ex- 
tensive with  those  of  the  legislative  department.  Where 
there  is  no  judicial  department  to  interpret,  pronounce, 
and  execute  the  law,  to  decide  controversies,  and  to 
enforce  rights,  the  government  must  either  perish  by  its 
own  imbecility,  or  the  other  departments  of  govern- 
ment must  usurp  powers,  for  the  purpose  of  command- 
ing obedience,  to  the  destruction  of  hberty.  The  will 
of  those,  w^ho  govern,  will,  under  such  circumstances, 
become  absolute  and  despotic ;  and  it  is  wholly  imma- 
terial, whether  power  is  vested  in  a  single  tyrant,  or  in  an 
assembly  of  tyrants.  No  remark  is  better  founded  in 
human  experience,  than  that  of  Montesquieu,  that  "there 
is  no  liberty,  if  the  judiciary  power  be  not  separated  from 
the  legislative  and  executive  powers."  And  it  is  no 
less  true,  that  personal  security  and  private  property 
rest  entirely  upon  the  wisdom,  the  stability,  and  the 
mtegrity  of  the  courts  of  justice.     If  that  government 


582     CONSTITUTION  OF  THE  C7.  STATES.  [bOOK  III. 

can  be  truly  said  to  be  despotic  and  intolerable,  in 
which  the  law  is  vague  and  uncertain,  it  cannot  but  be 
rendered  stilly  more  oppressive  and  more  mischievous, 
when  the  actual  administration  of  justice  is  dependent 
upon  caprice,  or  favour,  upon  the  will  of  rulers,  or  the 
influence  of  popularity.  When  power  becomes  right, 
it  is  of  little  consequence,  whether  decisions  rest  upon 
corruption,  or  weakness,  upon  the  accidents  of  chance, 
or  upon  deliberate  wrong.  In  every  well  organized 
government,  therefore,  with  reference  to  the  security 
both  of  public  rights  and  private  rights,  it  is  indispen- 
sable, that  there  should  be  a  judicial  department  to 
ascertain,  and  decide  rights,  to  punish  crimes,  to  admin- 
ister justice,  and  to  protect  the  innocent  from  injury 
and  usurpation. 

^  819.  In  the  national  government  the  power  is 
equally  as  important,  as  in  the  state  governments.  The 
laws  and  treaties,  and  even  the  constitution,  of  the 
United  States,  would  become  a  dead  letter  without  it. 
Indeed,  in  a  complicated  government,  like  ours,  where 
there  is  an  assemblage  of  republics,  combined  under  a 
common  head,  the  necessity  of  some  controlling  judi» 
cial  power,  to  ascertain  and  enforce  the  powers  of  the 
Union,  is,  if  possible,  still  more  striking.  The  laws  of 
the  whole  would  otherwise  be  in  continual  danger  of 
being  contravened  by  the  laws  of  the  parts.  The  na- 
tional government  would  be  reduced  to  a  servile  de- 
pendence upon  the  states;  and  the  same  scenes  would 
be  again  acted  over  in  solemn  mockery,  which  began 
in  the  neglect,  and  ended  in  the  ruin,  of  the  confedera- 
tion. Power,  without  adequate  means  to  enforce  it,  is 
hke  a  body  in  a  state  of  suspended  animation.  For  all 
practical  purposes  it  is,  as  if  its  faculties  were  extin- 
guished.    Even  if  there  were  no  danger  of  collision  be- 


CH.  XXXVIII.]    JUDICIARY  —  IMPORTANCE  OF.  683 

tween  the  laws  and  powers  of  the  Union,  and  those  of 
the  states,  it  is  utterly  impossible,  without  some  superin- 
tending judiciary  establishment,  that  there  should  be  any 
uniform  administration,  or  interpretation  of  them.  The 
idea  of  uniformity  of  decision  by  thirteen  independent 
and  co-ordinate  tribunals  (and  the  number  is  now  ad- 
vanced to  twenty-four)  is  absolutely  visionary,  if  not 
absurd.  The  consequence  would  necessarily  be,  that 
neither  the  constitution,  nor  the  laws,  neither  the  rights 
and  powers  of  the  Union,  nor  those  of  the  states,  would 
be  the  same  in  any  two  states.  And  there  would  be 
perpetual  fluctuations  and  changes,  growing  out  of  the 
diversities  of  judgment,  as  well  as  of  local  institutions, 
interests,  and  habits  of  thought. 

§  820.  Two  ends,  then,  of  paramount  importance, 
and  fundamental  to  a  free  government,  are  proposed  to 
be  attained  by  the  estabhshment  of  a  national  judiciary. 
The  first  is  a  due  execution  of  the  powers  of  the  gov- 
ernment ;  and  the  second  is  a  uniformity  in  the  inter- 
pretation and  operation  of  those  powers,  and  of  the 
laws  enacted  in  pursuance  of  them.  The  power  of  in- 
terpreting the  laws  involves  necessarily  the  function  to 
ascertain,  whether  they  are  conformable  to  the  constitu- 
tion, or  not ;  and  if  not  so  conformable,  to  declare  them 
void  and  inoperative.  As  the  constitution  is  the  su- 
preme law  of  the  land,  in  a  conflict  between  that  and 
the  laws,  either  of  congress,  or  of  the  states,  it  becomes 
the  duty  of  the  judiciary  to  follow  that  only,  which  is 
of  paramount  obligation.  This  results  from  the  very 
theory  of  a  republican  constitution  of  government ;  for 
otherwise  the  acts  of  the  legislature  and  executive 
would  in  effect  become  supreme  and  uncontrollable, 
notwithstanding  any  prohibitions  or  limitations  contain- 
ed in  the  constitution  ;  and  usurpations  of  the  most  un- 


584    CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

equivocal  and  dangerous  character  might  be  assumed, 
without  any  remedy  being  within  the  reach  of  the  citi- 
zens. The  people  would  thus  be  at  the  mercy  of  their 
rulers,  in  the  state  and  national  governments;  and  an  om- 
nipotence would  practically  exist,  like  that  claimed  for 
the  British  Parliament.  The  universal  sense  of  America 
has  decided,  that  in  the  last  resort  the  judiciary  must 
decide  upon  the  constitutionality  of  the  acts  and  laws 
of  the  general  and  state  governments,  a§  far  as  they  are 
capable  of  being  made  the  subject  of  judicial  controver- 
sy. It  follows,  that,  when  they  are  subjected  to  the 
cognizance  of  the  judiciary,  its  judgments  must  be  con- 
clusive; for  otherwise  they  may  be  disregarded,  and  the 
acts  of  the  legislature  and  executive  enjoy  a  secure  and 
irresistible  triumph. 

§  821.  The  framers  of  the  constitution,  having  these 
great  principles  in  view,  adopted  two  fundamental  rules 
with  entire  unanimity;  first,  that  a  national  judiciary 
ought  to  be  established;  secondly,  that  the  national 
judiciary  ought  to  possess  powers  co-extensive  with 
those  of  the  legislative  department.  Indeed,  the  latter 
necessarily  flowed  from  the  former,  and  was  treated, 
and  must  always  be  treated,  as  an  axiom  of  political 
government.  But  these  provisions  alone  would  not 
be  sufficient  to  ensure  a  complete  administration  of 
public  justice,  or  to  give  permanency  to  the  republic. 
The  judiciary  must  be  so  organized,  as  to  carry  into 
complete  effect  all  the  purposes  of  its  establishment. 
It  must  possess  wisdom,  learning,  integrity,  indepen- 
dence, and  firmness.  It  must  at  once  possess  the 
power  and  the  means  to  check  usurpation,  and  enforce 
execution  of  its  judgments.  Mr.  Burke  has,  with  sin- 
gular sagacity  and  pregnant  brevity,  stated  the  doctrine, 
which  every  republic  should  steadily  sustain,  and  con- 


, 


CH.  XXXVIII.]    JUDICIARY ORGANIZATION.  585 

scientiously  inculcate.  "  Whatever,"  says  he,  "  is  su- 
preme in  a  state  ought  to  have,  as  much  as  possible,  its 
judicial  authority  so  constituted,  as  not  only  not  to  de- 
pend upon  it,  but  in  some  sort  to  balance  it.  It  ought 
to  give  security  to  its  justice  against  its  power.  It 
ought  to  make  its  judicature,  as  it  vi^ere,  something 
exterior  to  the  state."  The  best  manner,  in  which  this 
is  to  be  accomplished,  must  mainly  depend  upon  the 
mode  of  appointment,  the  tenure  of  office,  the  com- 
pensation of  the  judges,  and  the  jurisdiction  confided 
to  the  department  in  its  various  branches. 

§  822.  Let  us  proceed,  then,  to  the  consideration  of 
the  judicial  department,  as  it  is  established  by  the 
constitution,  and  see,  how  far  adequate  means  are  pro- 
vided for  all  these  important  purposes.  * 

^  823.  The  first  section  of  the  third  article  is  as 
follows:  "The  judicial  power  of  the  United  States 
"  shall  be  vested  in  one  Supreme  Court,  and  in  such 
"  inferior  courts,  as  the  congress  may  from  time  to  time 
"  ordain  and  estabhsh.  The  judges,  both  of  the  su- 
"  preme  and  inferior  courts,  shall  hold  their  offices  dur- 
"  ing  good  behaviour ;  and  shall  at  stated  times  re- 
"  ceive  for  their  services  a  compensation,  which  shall 
"  not  be  diminished  during  their  continuance  in  office." 
To  this  may  be  added  the  clause  in  the  enumeration  of 
the  powers  of  congress  in  the  first  article,  (which  is  but 
a  mere  repetition,)  that  congress  shall  have  power  "  to 
"  constitute  tribunals  inferior  to  the  Supreme  Court." 

^  824.  To  the  establishme-nt  of  one  court  of  su- 
preme and  final  jurisdiction,  there  do  not  seem  to 
have  been  any  strenuous  objections  generally  insisted 
on  in  the  state  conventions,  though  many  were  urged 
against  certain  portions  of  the  jurisdiction,  proposed  by 
the  constitution  to  be  vested  in  the  courts  of  the  United 

Abr.  74 


586     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

States.  The  principal  question  seems  to  have  been  of 
a  different  nature,  whether  it  ought  to  be  a  distinct  co- 
ordinate department,  or  a  branch  of  the  legislature. 

^  825.  In  regard  to  the  power  of  constituting  infe- 
rior courts  of  the  Union,  it  is  evidently  calculated  to 
obviate  the  necessity  of  having  recourse  to  the  Su- 
preme Court  in  every  case  of  federal  cognizance.  It 
enables  the  national  government  to  institute,  or  author- 
ize in  each  state  and  district  of  the  United  States,  a 
tribunal  competent  to  the  determination  of  all  matters 
of  national  jurisdiction  within  its  hmits.  One  of  two 
courses  only  could  be  open  for  adoption ;  either  to  cre- 
ate inferior  courts  under  the  national  authority,  to  reach 
all  cases  fit  for  the  national  jurisdiction,  which  either 
constitutionally,  or  conveniently,  could  not  be  of  original 
cognizance  in  the  Supreme  Court ;  or  to  confide  juris- 
diction of  the  same  cases  to  the  state  courts,  with  a 
right  of  appeal  to  the  Supreme  Court.  To  the  latter 
course  soHd  objections  were  thought  to  apply,  which 
rendered  it  ineligible  and  unsatisfactory.  In  the  first 
place,  the  judges  of  the  state  courts  would  be  wholly 
irresponsible  to  the  national  government  for  their  con- 
duct in  the  administration  of  national  justice  ;  so,  that 
the  national  government  would,  or  might  be,  wholly 
dependent  upon  the  good  will,  or  sound  discretion  of 
the  states,  in  regard  to  the  efficiency,  promptitude,  and 
ability,  with  which  the  judicial  authority  of  the  nation 
should  be  administered.  In  the  next  place,  the  preva- 
lency  of  a  local,  or  sectional  spirit  might  be  found  to  dis- 
qualify the  state  tribunals  for  a  suitable  discharge  of  na- 
tional judicial  functions  ;  and  the  very  modes  of  appoint- 
ment of  some  of  the  state  judges  might  render  them  im- 
proper channels  of  the  judicial  authority  of  the  Union. 
State  judges,  holding  their  offices  during  pleasure,  or 


CH.  XXXVIII.]     JUDICIARY  —  ORGANIZATION.  587 

from  year  to  year,  or  for  other  short  periods,  would,  or 
at  least  might,  be  too  little  independent  to  be  relied 
upon  for  an  inflexible  execution  of  the  national  laws. 
What  could  be  done,  where  the  state  itself  should 
happen  to  be  in  hostility  to  the  national  government,  (as 
might  well  be  presumed  occasionally  to  be  the  case, 
from  local  interests,  party  spirit,  or  peculiar  prejudices,) 
if  the  state  tribunals  were  to  be  the  sole  depositaries 
of  the  judicial  powers  of  the  Union,  in  the  ordinary 
administration  of  criminal,  as  well  as  of  civil  justice  1 
Besides;  if  the  state  tribunals  were  thus  entrusted 
with  the  ordinary  administration  of  the  criminal  and 
civil  justice  of  the  Union,  there  would  be  a  necessity 
for  leaving  the  door  of  appeal  as  widely  open,  as  pos- 
sible. In  proportion  to  the  grounds  of  confidence  in, 
or  distrust  of,  the  subordinate  tribunals,  ought  to  be  the 
facility  or  difficulty  of  appeals.  An  unrestrained  course 
of  appeals  would  be  a  source  of  much  private,  as  well 
as  public  inconvenience.  It  would  encourage  litigation, 
and  lead  to  the  most  oppressive  expenses.  Nor  should 
it  be  omitted,  that  this  very  course  of  appeals  would 
naturally  lead  to  great  jealousies,  irritations,  and  col- 
lisions between  the  state  courts  and  the  Supreme  Court, 
not  only  from  differences  of  opinions,  but  from  that 
pride  of  character,  and  consciousness  of  independence, 
which  would  be  felt  by  state  judges,  possessing  the 
confidence  of  their  own  state,  and  irresponsible  to  the 
Union. 

§  826.  In  considering  the  first  clause  of  the  third 
section,  declaring,  that  "  the  judicial  power  of  the  Unit- 
"  ed  States  shall  be  vested  in  one  Supreme  Court,  and 
"in  such  inferior  courts,  as  the  congress  may,  from  time 
"  to  time,  ordain  and  establish,"  we  are  naturally  led  to 
the  inquiry,  whether  congress  possess  any  discretion. 


588     CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

as  to  the  creation  of  a  Supreme  Court  and  inferior 
courts,  in  which  the  constitutional  jurisdiction  is  to  be 
vested.  This  was  at  one  time  matter  of  much  discus- 
sion ;  and  is  vital  to  the  existence  of  the  judicial  de- 
partment. If  congress  possess  any  discretion  on  this 
subject,  it  is  obvious,  that  the  judiciary,  as  a  co-ordi- 
nate department  of  the  government,  may,  at  the  will 
of  congress,  be  annihilated,  or  stripped  of  all  its  impor- 
tant jurisdiction  ;  for,  if  the  discretion  exists,  no  one  can 
say  in  what  manner,  or  at  what  time,  or  under  what 
circumstances,  it  may,  or  ought  to  be  exercised.  The 
whole  argument,  upon  which  such  an  interpretation  has 
been  attempted  to  be  maintained,  is,  that  the  language 
of  the  constitution,  "  shall  be  vested,"  is  not  impera- 
tive, but  simply  indicates  the  future  tense.  This  inter- 
pretation has  been  overruled  by  the  Supreme  Court, 
upon  solemn  deliberation.  "The  language  of  the  third 
article,"  say  the  court,  "throughout  is  manifestly  de- 
signed to  be  mandatory  upon  the  legislature.  Its  ob- 
ligatory force  is  so  imperative,  that  congress  could  not, 
without  a  violation  of  its  duty,  have  refused  to  carry  it 
into  operation.  The  judicial  power  of  the  United 
States  shall  he  vested  (not  may  be  vested)  in  one  Su- 
preme Court,  and  in  such  inferior  courts,  as  congress 
may,  from  time  to  time,  ordain  and  establish.  Could 
congress  have  lawfully  refused  to  create  a  Supreme 
Court,  or  to  vest  in  it  the  constitutional  jurisdiction? 
'The  judges,  both  of  the  supreme  and  inferior  courts, 
shall  hold  their  offices  during  good  behaviour,  and  shall^ 
at  stated  times,  receive,  for  their  services,  a  compensa- 
tion, which  shall  not  be  diminished  during  their  contin- 
uance in  office.'  Could  congress  create,  or  limit  any 
other  tenure  of  the  judicial  office  ?  Could  they  refuse 
to  pay,  at  stated  times,  the  stipulated  salary,  or  dimin- 


CH.  XXXVIII.]    JUDICIARY  —  ORGANIZATION.  589 

ish  it  during  the  continuance  in  office?  But  one  an- 
swer can  be  given  to  these  questions.  It  must  be  in  the 
negative.  The  object  of  the  constitution  was  to  estab- 
lish three  great  departments  of  government ;  the  legis- 
lative, the  executive,  and  the  judicial  department. 
The  first  was  to  pass  laws,  the  second  to  approve  and 
execute  them,  and  the  third  to  expound  and  enforce 
them.  Without  the  latter,  it  would  be  impossible  to 
carry  into  effect  some  of  the  express  provisions  of  the 
constitution.  How,  otherwise,  could  crimes  against  the 
United  States  be  tried  and  punished?  How  could 
causes  between  two  states  be  heard  and  determined  1 
The  judicial  power  must,  therefore,  be  vested  in  some 
court  by  congress  ;  and  to  suppose,  that  it  was  not  an 
obligation  binding  on  them,  but  might,  at  their  pleasure, 
be  omitted,  or  declined,  is  to  suppose,  that,  under  the 
sanction  of  the  constitution,  they  might  defeat  the  con- 
stitution itself.  A  construction,  which  would  lead  to 
such  a  result,  cannot  be  sound." 

§  827.  The  constitution  has  wisely  established, 
that  there  shall  be  one  Supreme  Court,  with  a  view  to 
uniformity  of  decision  in  all  cases  whatsoever,  belong- 
ing to  the  judicial  department,  whether  they  arise  at 
the  common  law,  or  in  equity,  or  within  the  admiralty 
and  prize  jurisdiction ;  whether  they  respect  the  doc- 
trines of  mere  municipal  law,  or  constitutional  law,  or 
the  law  of  nations.  It  is  obvious,  that,  if  there  were  in- 
dependent supreme  courts  of  common  law,  of  equity, 
and  of  admiralty,  a  diversity  of  judgment  might,  and 
almost  necessarily  would  spring  up,  not  only,  as  to  the 
limits  of  the  jurisdiction  of  each  tribunal ;  but  as  to  the 
fundamental  doctrines  of  municipal,  constitutional,  and 
public  law.  The  effect  of  this  diversity  would  be,  that 
a  different  rule  would,  or  might  be  promulgated  on  the 


590     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

most  interesting  subjects  by  the  several  tribunals  ;  and 
thus  the  citizens  be  involved  in  endless  doubts,  not 
only  as  to  their  private  rights,  but  as  to  their  public  du- 
ties. The  constitution  itself  would,  or  might  speak  a 
different  language  according  to  the  tribunal,  which  was 
called  upon  to  interpret  it ;  and  thus  interminable  dis- 
putes might  embarrass  the  administration  of  justice 
throughout  the  whole  country.  But  the  same  reason  did 
not  apply  to  the  inferior  tribunals.  These  were,  there- 
fore, left  entirely  to  the  discretion  of  congress,  as  to  their 
number,  their  jurisdiction,  and  their  powers.  Experi- 
ence might,  and  probably  would,  show  good  grounds 
for  varying  and  modifying  them  from  time  to  time.  It 
would  not  only  have  been  unwise,  but  exceedingly  in- 
convenient, to  have  fixed  the  arrangement  of  these 
courts  in  the  constitution  itself;  since  congress  would 
have  been  disabled  thereby  from  adapting  them  from 
time  to  time  to  the  exigencies  of  the  country.  But, 
whatever  may  be  the  extent,  to  which  the  power  of 
congress  reaches,  as  to  the  establishment  of  inferior  tri- 
bunals, it  is  clear  from  what  has  been  already  stated, 
that  all  the  jurisdiction  contemplated  by  the  constitu- 
tion must  be  vested  in  some  of  its  courts,  either  in  an 
original  or  an  appellate  form. 

^  828.  We  next  come  to  the  consideration  of  those 
securities,  which  the  constitution  has  provided  for  the 
due  independence  and  efficiency  of  the  judicial  de- 
partment. 

§  829.  The  mode  of  appointment  of  the  judges 
has  necessarily  come  under  reviev/,  in  the  examination 
of  the  structure  and  powers  of  the  executive  depart- 
ment. The  president  is  expressly  authorized,  by  and 
with  the  consent  of  the  senate,  to  appoint  the  judges 
of  the   Supreme   Court.      The   appointment   of   the 


CH.  XXXVIII.]  JUDICIARY  —  TENURE  OF  OFFICE.    591 

judges  of  the  inferior  courts  is  not  expressly  provided 
for ;  but  has  either  been  left  to  the  discretion  of  con- 
gress, or  silently  belongs  to  the  president,  under  the 
clause  of  the  constitution  authorizing  him  to  appoint 
"  all  other  officers  of  the  United  States,  whose  appoint- 
"  ments  are  not  herein  otherwise  provided  for." 

§  830.  The  next  consideration  is  the  tenure,  by 
which  the  judges  hold  their  offices.  It  is  declared 
that  "the  judges,  both  of  the  Supreme  and  Inferior 
"  Courts  shall  hold  their  offices  during  good  beha- 
"  viour." 

§  831.  It  has  sometimes  been  suggested,  that, 
though  in  monarchical  governments  the  independence 
of  the  judiciary  is  essential  to  guard  the  rights  of  the 
subjects  from  the  injustice  and  oppression  of  the 
crown ;  yet  that  the  same  reasons  do  not  apply  to  a 
republic,  where  the  popular  will  is  sufficiently  known, 
and  ought  always  to  be  obeyed.  A  little  considera- 
tion of  the  subject  will  satisfy  us,  that,  so  far  from  this 
being  true,  the  reasons  in  favour  of  the  independence 
of  the  judiciary  apply  with  augmented  force  to  repub- 
lics ;  and  especially  to  such  as  possess  a  written  con- 
stitution with  defined  powers,  and  limited  rights. 

^  832.  In  the  first  place,  factions  and  parties  are 
quite  as  common,  and  quite  as  violent  in  republics,  as 
in  monarchies ;  and  the  same  safeguards  are  as  indis- 
pensable in  the  one,  as  in  the  other,  against  the  en- 
croachments of  party  spirit,  and  the  tyranny  of  fac- 
tions. Laws,  however  wholesome  or  necessary,  are 
frequently  the  objects  of  temporary  aversion,  and 
popular  odium,  and  sometimes  of  popular  resistance. 
Nothing  is  more  facile  in  republics,  than  for  dema- 
gogues, under  artful  pretences,  to  stir  up  combinations 
against  the  regular  exercise  of  authority.     Their  selfish 


592  CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 

purposes  are  too  often  interrupted  by  the  firmness  and 
independence  of  upright  magistrates,  not  to  make  them 
at  all  times  hostile  to  a  power,  which  rebukes,  and  an 
impartiality,  which  condemns  them.  The  judiciary,  as 
the  weakest  point  in  the  constitution,  on  which  to  make 
an  attack,  is  therefore,  constantly  that,  to  which  they 
direct  their  assaults  ;  and  a  triumph  here,  aided  by  any 
momentary  popular  encouragement,  achieves  a  lasting 
victory  over  the  constitution  itself.  Hence,  in  republics, 
those,  who  are  to  profit  by  public  commotions,  or  the 
prevalence  of  faction,  are  always  the  enemies  of  a  reg- 
ular and  independent  administration  of  justice.  They 
spread  all  sorts  of  delusion,  in  order  to  mislead  the 
public  mind,  and  excite  the  public  prejudices.  They 
know  full  well,  thai,  without  the  aid  of  the  people,  their 
schemes  must  prove  abortive;  and  they,  therefore,  em- 
ploy every  art  to  undermine  the  public  confidence,  and 
to  make  the  people  the  instruments  of  subverting  their 
own  rights  and  liberties. 

§  833.  It  is  obvious,  that,  under  such  circumstances, 
if  the  tenure  of  office  of  the  judges  is  not  permanent, 
they  will  soon  be  rendered  odious,  not  because  they 
do  wrong,  but  because  they  refuse  to  do  wrong ;  and 
they  will  be  made  to  give  way  to  others,  who  shall  be- 
come more  pliant  tools  of  the  leading  demagogues  of 
the  day.  There  can  be  no  security  for  the  minority  in 
a  free  government,  except  through  the  judicial  depart- 
ment. In  a  monarchy,  the  sympathies  of  the  people 
are  naturally  enlisted  against  the  meditated  oppres- 
sions of  their  ruler ;  and  they  screen  his  victims  from 
his  ven.2;eance.  His  is  the  cause  of  one  against  the 
community.  But,  in  free  governments,  where  the  ma- 
jority, who  obtain  power  for  the  moment,  are  supposed 
to  represent  the  will  of  the  people,  persecution,  espe- 


CH.  XXXVIII.]  JUDICIARY -TENURE  OF  OFFICE.        593 

cially  of  a  political  nature,  becomes  the  cause  of  the 
community  against  one.  It  is  the  more  violent  and 
unrelenting,  because  it  is  deemed  indispensable  to  at- 
taiu  power,  or  to  enjoy  the  fruits  of  victory.  In  free 
governments,  therefore,  the  independence  of  the  judi- 
ciary becomes  far  more  important  to  the  security  of  the 
rights  of  the  citizens,  than  in  a  monarchy  ;  since  it  is 
the  only  barrier  against  the  oppressions  of  a  dominant 
faction,  armed  for  the  moment  with  power,  and  abusing 
the  influence,  acquired  under  accidental  excitements, 
to  overthrow  the  institutions  and  liberties,  which  haye 
been  the  deliberate  choice  of  the  people. 

^  834.  In  the  next  place,  the  independence  of  the 
judiciary  is  indispensable  to  secure  the  people  agains,t 
the  intentional,  as  well  as  unintentional,  usurpations  of 
the  executive  and  legislative  department^.  It  has  been 
observed  with  great  sagacity,  that  power  is  perpetually 
stealing  from  the  many  to  the  few ;  and  the  tendency 
of  the  legislative  department  to  absorb  all  the  other 
powers  of  the  government  has  always  been  dwelt 
upon  by  statesmen  and  patriots,  as  a  general  truth,  con- 
firmed by  all  human  experience.  If  the  judges  are  ap- 
pointed at  short  intervals,  either  by  the  legislative,  or  the 
executive  department,  they  will  naturally,  and,  indeed, 
almost  necessarily,  become  mere  dependents  upon  the 
appointing  power.  If  they  have  any  desire  to  obtain, 
or  to  hold  office,  they  will  at  all  times  evince  a  desire 
to  follow,  and  obey  the  will  of  the  predominant  power 
in  the  state.  Public  justice  will  be  administered  with  a 
faultering  and  feeble  hand.  It  will  secure  nothing,  but 
its  own  place,  and  the  approbation  of  those,  who  value, 
because  they  control  it.  It  will  decree,  what  best  suits 
the  opinions  of  the  day ;  and  it  will  forget,  that  the  pre- 
cepts of  the  law  rest   on   eternal   foundations.      The 

Abr.  75 


694  CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 

rulers  and  the  citizens  will  not  stand  upon  an  equal 
ground  in  litigations.  The  favourites  of  the  day  will 
overawe  by  their  power,  or  seduce  by  their  influence  ; 
and  thus,  the  fundamental  maxim  of  a  republic,  that  it 
is  a  government  of  laws,  and  not  of  men,  will  be  silentlj 
disproved,  or  openly  abandoned. 

§  835.  In  the  next  place,  these  considerations  ac- 
quire (as  has  been  already  seen)  still  more  cogency 
and  force,  vi^hen  applied  to  questions  of  constitutional 
law.  In  monarchies,  the  only  practical  resistance, 
which  the  judiciary  can  present,  is  to  the  usurpations 
of  a  single  department  of  the  government,  unaided,  and 
acting  for  itself.  But,  if  the  executive  and  legislative 
departments  are  combined  in  any  course  of  measures, 
obedience  to  their  will  becomes  a  duty,  as  well  as  a 
necessity.  Thus,  even  in  the  free  government  of 
Great  Britain,  an  act  of  parliament,  combining,  as  it 
does,  the  will  of  the  crown,  and  the  legislature,  is 
absolute  and  omnipotent.  It  cannot  be  lawfully  resist- 
ed, or  disobeyed.  The  judiciary  is  bound  to  carry  it 
into  effect  at  every  hazard,  even  though  it  should  sub- 
vert private  rights  and  public  liberty.  But  it  is  far 
otherwise  in  a  republic,  hke  our  own,  with  a  limited 
constitution,  prescribing  at  once  the  powers  of  the 
rulers,  and  the  rights  of  the  citizens.  This  very  cir- 
cumstance would  seem  conclusively  to  show,  that  the 
independence  of  the  judiciary  is  absolutely  indispensa- 
ble to  preserve  the  balance  of  such  a  constitution.  In 
no  other  way  can  their  be  any  practical  restraint  upon 
the  acts  of  the  government,  or  any  practical  enforce- 
ment of  the  rights  of  the  citizens.  This  subject  has 
been  already  examined  very  much  at  large,  and  needs 
only  to  be  touched  in  this  place.  No  man  can  deny  the 
necessity  of  a  judiciary  to  interpret  the  constitution 


CH.  XXXVIII.]    JUDICIARY TENURE  OF  OFFICE      595 

and  laws,  and  to  preserve  the  citizens  against  oppres- 
sion and  usurpation  in  civil  and  criminal  prosecutions. 
Does  it  not  follow,  that,  to  enable  the  judiciary  to  fulfil 
its  functions,  it  is  indispensable,  that  the  judges  should 
not  hold  their  offices  at  the  mere  pleasure  of  those, 
whose  acts  they  are  to  check,  and,  if  need  be,  to  de- 
clare void  ?  Can  it  be  supposed  for  a  moment,  that 
men  holding  their  offices  for  the  short  period  of  two,  or 
four,  or  even  six  years,  will  be  generally  found  firm 
enough  to  resist  the  will  of  those,  who  appoint  them, 
and  may  remove  them  7 

^  836.  The  argument  of  those,  who  contend  for  a 
short  period  of  office  of  the  judges,  is  founded  upon 
the  necessity  of  a  conformity  to  the  will  of  the  people. 
But  the  argument  proceeds  upon  a  fallacy,  in  suppos- 
ing, that  the  will  of  the  rulers,  and  the  will  of  the  peo- 
ple are  the  same.  Now,  they  not  only  may  be,  but 
often  actually  are,  in  direct  variance  to  each  other.  No 
man  in  a  republican  government  can  doubt,  that  the 
will  of  the  people  is,  and  ought  to  be,  supreme.  But 
it  is  the  deliberate  w^ill  of  the  people,  evinced  by  their 
solemn  acts,  and  not  the  momentary  ebullitions  of 
those,  who  act  for  the  majority,  for  a  day,  or  a  month, 
or  a  year.  The  constitution  is  the  will,  the  deliberate 
will,  of  the  people.  They  have  declared  under  what 
circumstances,  and  in  what  manner  it  shall  be  amend- 
ed, and  altered  ;  and  until  a  change  is  effected  in  the 
manner  prescribed,  it  is  declared,  that  it  ^hall  be  the 
supreme  law  of  the  land,  to  which  all  persons,  rulers, 
as  well  as  citizens,  must  bow  in  obedience.  When  it 
is  constitutionally  altered,  then  and  not  until  then,  are 
the  judges  at  liberty  to  disregard  its  original  injunc- 
tions. When,  therefore,  the  argument  is  pressed,  that 
the  judges  ought  to  be  subject  to  the  will  of  the  peo- 


596    CONSTITUTION  OF  THE  U.  STATES.   [BOOK  III. 

pie,  no  one  doubts  the  propriety  of  the  doctrine  iii  its 
true  and  legitimate  sense. 

5j  837.  But  those,  who  press  the  argument,  use  it 
in  a  far  broader  sense.  In  their  view,  the  will  of  the 
people,  as  exhibited  in  the  choice  of  the  rulers,  is  to  be 
followed^  If  the  rulers  interpret  the  constitution  dif- 
ferently fj-dm  the  jtidges,  the  former  are  to  be  obeyed, 
because  they  represent  the  opiniohs  of  the  people ;  and 
iherfefore,  the  judges  ought  to  be  removable,  or  ap- 
pointed for  a  short  period,  so  aS  to  become  subject  to 
the  will  of  the  people,  as  expressed  by  and  through 
their  rulers;  But^  is  it  not  at  once  seen,  that  this  is  in 
fact  subverting  the  constitution  ?  Would  it  not  make 
the  constitution  an  instrument  of  flexible  and  changea- 
ble interpretation,  and  hot  a  settled  form  of  govern- 
ment with  fixed  hmitations  ?  Would  it  not  become, 
instead  of  a  supreme  law  for  otirselves  and  our  posteri- 
iy^  a  mefe  oracle  of  the  powers  of  the  rulers  of  the 
day,  to  which  implicit  homage  is  to  be  paid,  and 
Speaking  at  different  times  the  most  opposite  com- 
tnands,  and  in  the  most  ambiguous  voices  ?  In  short, 
is  not  this  an  attempt  to  erect,  behind  the  constitution, 
a  power  unknown,  and  unprovided  for  by  the  constitu- 
tion^  and  greater  than  itself?  What  become  of  the 
limitations  of  the  constitution,  if  the  will  of  the  people, 
thus  inofficially  promulgated,  foi*ms,  for  the  time  being, 
the  Supreme  law,  and  the  supreme  exposition  of  the 
lawl  If  this  constitution  defines  the  powers  of  the 
got^ernment,  and  points  out  the  mode  of  changing 
them ;  and  yet  the  instrument  is  tb  expand  in  the 
hands  of  one  set  of  rulers,  and  to  contract  in  those  of 
another,  where  is  the  standard  ?  If  the  will  of  the  peo- 
ple is  to  govern  in  the  construction  of  the  powers  of 
th^  constitution,  and  that  will  is  to  be  gathered  at  every 


CH.  XXXVIII.]       JUDICIARY -TENURE  OF  OFFICE.      697 

successive  election  at  the  polls,  and  not  from  their  de- 
liberate judgment,  and  solemn  acts  in  ratifying  the 
constitution,  or  in  amending  it,  what  certainty  can  there 
be  in  those  powers  1  If  the  constitution  is  to  be  ex- 
pounded, not  by  its  written  text,  biit  by  the  opinions  of 
the  rulers  for  the  time  being,  whose  opinions  are  to 
prevail,  the  first,  or  the  last?  When,  therefore,  it  is 
said,  that  the  judges  ought  to  be  subjected  to  the  will 
of  the  people,  and  to  conform  to  their  interpretation  of 
the  constitution^  the  practical  meaning  must  be,  that 
they  should  be  subjected  to  the  control  of  the  repre- 
sentatives of  the  people  in  the  executive  and  legislative 
departments,  and  should  interpret  the  constitution,  as 
the  latter  may,  from  time  to  time,  deem  correct. 

§  838.  But  it  is  obvious,  that  elections  can  rarely,  if 
ever,  furnish  any  sufficient  proofs,  what  is  deUberately 
the  will  of  the  people,  as  to  any  constitutional  or  legal 
doctrines.  Representatives  and  rulers  must  be  ordina- 
rily chosen  for  very  different  purposes  ;  and,  in  many 
instances,  their  opinions  upon  constitutional  questions 
must  be  unknown  to  their  constituents.  The  only 
means  known  to  the  constitution,  by  which  to  ascertain 
the  will  of  the  people  upon  a  constitutional  question,  is 
in  the  shape  of  an  affirmative  or  negative  proposition 
by  way  of  amendment^  offered  for  their  adoption  in  the 
mode  prescribed  by  the  constitution.  The  elections  in 
one  year  may  bring  one  party  into  power ;  and  in  the 
next  year  their  opponents,  embracing  opposite  doc- 
trines, may  succeed ;  and  so  alternate  success  and  de- 
feat may  perpetually  recur  in  the  same  districts,  and  in 
the  same,  or  in  different  states. 

^  839.  Surely  it  will  not  be  pretended,  that  any 
constitution,  adapted  to  the  American  people,  could 
tver  contemplate  the  executive  and  legislative  depart- 


598     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

ments  of  the  government,  as  the  ultimate  depositaries 
of  the  power  to  interpret  the  constitution ;  or  as  the 
ultimate  representatives  of  the  will  of  the  people,  to 
change  it  at  pleasure.  If,  then,  the  judges  were  ap- 
pointed for  two,  or  four,  or  six  years,  instead  of  dur- 
ing good  behaviour,  the  only  security,  which  the  peo- 
ple would  have  for  a  due  administration  of  public  jus- 
tice, and  a  firm  support  of  the  constitution,  would  be, 
that  being  dependent  upon  the  executive  for  their  ap- 
pointment during  their  brief  period  of  office,  they 
might,  and  would  represent  more  fully,  for  the  time  be- 
ing, the  constitutional  opinion  of  each  successive  exec- 
utive ;  and  thus  carry  into  effect  his  system  of  govern- 
ment. Would  this  be  more  wise,  or  more  safe,  more 
for  the  permanence  of  the  constitution,  or  for  the  pre- 
servation of  the  liberties  of  the  people,  than  the  present 
system?  Would  the  judiciary,  then,  be,  in  fact,  an 
independent  co-ordinate  department?  Would  it  pro- 
tect the  people  against  an  ambitious  or  corrupt  exec- 
utive ;  or  restrain  the  legislature  from  acts  of  uncon- 
stitutional authority  ? 

§  840.  The  truth  iSj  that,  even  with  the  most  se- 
cure tenure  of  office,  during  good  behaviour,  the  danger 
is  not,  that  the  judges  will  be  too  firm  in  resisting  pub- 
lic opinion,  and  in  defence  of  private  rights  or  public 
liberties ;  but,  that  they  will  be  too  ready  to  yield  them- 
selves to  the  passions,  and  politics,  and  prejudices  of 
the  day.  In  a  monarchy,  the  judges,  in  the  performance 
of  their  duties  with  uprightness  and  impartiality,  will 
always  have  the  support  of  some  of  the  departments  of 
the  government,  or  at  least  of  the  people.  In  republics, 
they  may  sometimes  find  the  other  departments  com- 
bined in  hostility  against  the  judiciary ;  and  even  the 
people,  for  a  while,  under  the  influence  of  party  spirit 


CH.  XXXVIII.]    JUPICIARY-TENURE  OF  OFFICE.      599 

and  turbulent  factions,  ready  to  abandon  them  to  their 
fate.  Few  men  possess  the  firmness  to  resist  the  tor- 
rent of  popular  opinion.  Still  fewer  are  content  to  sacri^ 
fice  present  ease  and  public  favour,  in  order  to  earn  the 
slow  rewards  of  a  conscientious  discharge  of  duty  ;  the 
sure,  but  distant,  gratitude  of  the  people;  and  the 
severe,  but  enlightened,  award  of  posterity. 

§  841.  If  passing  from  general  reasoning,  an  appeal 
is  made  to  the  lessons  of  experience,  there  is  every 
thing  to  convince  us,  that  the  judicial  department  is 
safe  in  a  republic  with  the  tenure  of  office  during  good 
behaviour  ;  and  that  justice  will  ordinarily  be  best  adr 
ministered,  where  there  is  most  independence.  Of 
the  state  constitutions,  five  only  outof  twenty -four  have 
provided  for  any  other  tenure  of  office,  than  during  good 
behaviour;  and  those  adopted  by  the  new  states  admit'- 
ted  into  the  Union,  since  the  formation  of  the  national 
government,  have,  with  two  or  three  exceptions  only, 
embraced  the  same  permanent  tenure  of  office.  No  one 
can  hesitate  to  declare  that  in  the  states,  where  the 
judges  hold  their  offices  during  good  behaviour,  justjce 
is  administered  with  wisdom,  moderation,  and  firmness ; 
and  that  the  public  confidence  has  reposed  upon  the 
judicial  department,  in  the  most  critical  times,  with 
unabated  respect.  If  the  same  can  be  said  in  regard 
to  other  states,  where  the  judges  enjoy  a  less  perma- 
nent tenure  of  office,  it  will  not  answer  the  reasoning, 
unless  it  can  also  be  shown,  that  the  latter  have  never 
been  removed  for  pohtical  causes,  wholly  disdnct, 
from  their  own  merit;  and  yet  have  often  deliber- 
ately placed  themselves  in  opposition  to  the  popular 
opinion. 

§  842.  The  considerations  above  stated  lead  us  to  the 
xionclusion,  that  in  republics  there  are,  in  reality,  strong- 


600  CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 

er  reasons  for  an  independent  tenure  of  office  by  the 
judges,  a  tenure  during  good  behaviour,  than  in  a  mon- 
archy.    Indeed,  a  republic  with  a  limited  constitution^ 
and  yet  without  a  judiciary  sufficiently  independent  to 
check  usurpation,  to  protect  public  liberty,  and  to  en- 
force private  rights,  would  be  as  yisionary  and  absurd, 
as  a  society  organized  without  any  restraints  of  law.  It 
would  become  a  democracy  with  unlimited  powers,  ex- 
ercising through  its  rulers  a  universal  despotic  sove- 
reignty.    Tue  very  theory  of  a  balanced  republic  of 
restricted  powers  presupposes  some  organized  means 
to  control,  and  resist,  any  excesses  of  authority.     The 
people  may,  if  they  please,  submit  all  power  to  their 
rulers  for  the  time  being ;   but,  then,  the  government 
•should  receive  its  true  appellation  and  character.     It 
would  be  ei  government  of  tyrants,  elective,  it  is  true? 
but  still  tyrants ;  and  it  would  become  the  more  fierce, 
.yindictive,  and  sanguinary,  because  it  would  perpetually 
generate  factions  in  its  own  bosom,  which  could  succeed 
m\y  by  the  ruin  of  their  enemies.     It  would  be  alter- 
»ately  characterized,  as  a  reign  of  terror,  and  a  reign 
of  imbecility.      It  would  be  as  corrupt,  as  it  would  be 
dangerous.     It  would  form  another  model  of  that  pro- 
fligate and  bloody  democracy,  which,  at  one  time,  in  the 
French  revolution,  darkened  by  its  deeds  the  fortune^ 
of  France,  and  left  to  mankind  the  appalling  lesson, 
that  virtue  and  religion,  genius  and  learning,  the  au- 
thority of  wisdom  and  the  appeals  of  innocence,  are 
unheard  and  unfelt  in  the  frenzy  of  popular  excitement ; 
and,  that  the  worst  crimes  may  be  sanctioned,  and  the 
most  desolating  principles  inculcated,  under  the  ban- 
ners, and  in  the  name  of  liberty.      In  human  govern.- ; 
ments,  there  are  but  two  controlling  powers ;  the  pow- 
er of  arms,  and  the  power  of  laws.     If  the  latter  are 


CH.  XXXVIII.]    JUDICIARY -TENURE  OF  OFFICE.        601 

not  enforced  by  a  judiciary  above  all  fear,  and  above 
all  reproach,  the  former  must  prevail ;    and  thus  lead 
to  the  triumph  of  military  over  civil  institutions.     The 
framers   of    the  constitution,  w^ith  profound   wisdom, 
laid  the  corner  stone  of  our  national  republic  in  the 
permanent   independence    of    the  judicial    establish- 
ment.     Upon  this  point  their  vote   was  unanimous. 
They  adopted  the  results  of  an  enlightened  experience. 
They  were  not  seduced  by  the  dreams  of  human  per- 
fection into  the  belief,  that  all  power  might  be  safely 
left  to  the  unchecked  operation  of  the  private  ambition, 
or  personal  virtue  of  rulers.      Nor,  on  the  other  hand, 
were  they  so  lost  to  a  just  estimate  of  human  concerns, 
as  not  to  feel,  that  confidence  must  be  reposed  some- 
where ;  if  either  efficiency,  or  safety  are  to  be  consult- 
ed in  the  plan  of  government.     Having  provided  amply 
for  the  legislative  and  executive  authorities,  they  estab- 
hshed  a  balance-wheel,  which,  by  its  independent  struc- 
ture, should  adjust  the  irregularities,  and  check  the 
occasional  excesses  of  the  movements  of  the  system. 

§  843.  It  is  observable,  that  the  constitution  has  de- 
clared, that  the  judges  of  the  inferior  courts,  as  well  as 
of  the  Supreme  Court,  of  the  United  States,  shall  hold 
their  offices  during  good  behaviour.  In  this  respect 
there  is  a  marked  contrast  between  the  English  gov- 
ernment and  our  own.  In  England  the  tenure  is 
exclusively  confined  to  the  judges  of  the  superior 
courts,  and  does  not  even  embrace  all  of  these. 
In  fact,  a  great  portion  of  all  the  civil  and  criminal 
business  of  the  whole  kingdom  is  performed  by  per- 
sons delegated,  pro  hac  vice,  for  this  purpose,  under 
commissions  issued  periodically  for  a  single  circuit. 
It  is  true,  that  it  is,  and  for  a  long  period  has  been,  or- 
dinarily administered  by  the  judges  of  the  courts  of 

Abr.  76 


602  CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

King's  Bench,  Common  Pleas,  and  Exchequer ;  but  it 
is  not  so  merely  virtute  officii,  but  under  special  com- 
missions investing  them  from  time  to  time  with  this  au- 
thority in  conjunction  with  other  persons  named  in  the 
commissions.  Such  are  the  commissions  of  oyer  and 
terminer,  of  assize,  of  gaol  delivery,  and  of  nisi  prius, 
under  which  all  civil  and  criminal  trials  of  matters  of 
fact  are  had  at  the  circuits,  and  in  the  metropolis.  By 
the  constitution  of  the  United  States  all  criminal  and 
civil  jurisdiction  must  be  exclusively  confided  to  judges 
holding  their  office  during  good  behaviour ;  and  though 
congress  may  from  time  to  time  distribute  the  jurisdic- 
tion among  such  inferior  courts,  as  it  may  create  from 
time  to  time,  and  withdraw  it  at  their  pleasure,  it  is  not 
competent  for  them  to  confer  it  upon  temporary  judges, 
or  to  confide  it  by  special  commission.  Even  if  the 
English  system  be  well  adapted  to  the  wants  of  that  na- 
tion, and  if  it  secure  a  wise  and  beneficent  administration 
of  justice  in  the  realm,  as  it  doubtless  does ;  still  it  is 
obvious,  that,  in  our  popular  government,  it  would  be 
quite  too  great  a  power,  to  trust  the  whole  administra- 
tion of  civil  and  criminal  justice  to  commissioners,  ap- 
pointed at  the  pleasure  of  the  president.  To  the  con- 
stitution of  the  United  States,  and  to  those,  who  enjoy 
its  advantages,  no  judges  are  known,  but  such,  as  hold 
their  offices  during  good  behaviour. 

§  844.  The  next  clause  of  the  constitution  declares, 
that  the  judges  of  the  supreme  and  inferiour  courts 
"  shall,  at  stated  times,  receive  for  their  services  a  com- 
"  pensation,  which  shall  not  be  diminished  during  their 
"  continuance  in  office."  Without  this  provision  the 
other,  as  to  the  tenure  of  office,  would  have  been  utter- 
ly nugatory,  and  indeed  a  mere  mockery.  The  Fed- 
eralist has  here  spoken  in  language  so  direct  and 
convincing,  that  it  supercedes  all  other  argument. 


CH.  XXXVIII.]    JUDICIARY COMPENSATION.  603 

§  845.  "  Next  to  permanency  in  office,  nothing  can 
contribute  more  to  the  independence  of  the  judges, 
than  a  fixed  provision  for  their  support.  The  remark 
made  in  relation  to  the  president  is  equally  appHcable 
here.  In  the  general  course  of  human  nature,  a  power 
over  a  man^s  subsistence  amounts  to  a  power  over  his 
ivilL  And  we  can  never  hope  to  see  realized  in  prac- 
tice the  complete  separation  of  the  judicial  from  the 
legislative  power  in  any  system,  which  leaves  the 
former  dependent  for  pecuniary  resource  on  the  occa- 
sional grants  of  the  latter.  The  enlightened  friends  to 
good  government  in  every  state  have  seen  cause  to 
lament  the  want  of  precise  and  explicit  precautions  in 
the  state  constitutions  on  this  head.  Some  of  these 
indeed  have  declared,  that  permanent  salaries  should 
be  established  for  the  judges ;  but  the  experiment  has 
in  some  instances  shown,  that  such  expressions  are  not 
sufficiendy  definite  to  preclude  legislative  evasions. 
Something  still  more  positive  and  unequivocal  has  been 
evinced  to  be  requisite.  The  plan  of  the  convention 
accordingly  has  provided,  that  the  judges  of  the  United 
States  '  shall  at  stated  times  receive  for  their  services  a 
compensation,  which  shall  not  be  diminished  during 
their  continuance  in  office.' 

§  846.  "  This,  all  circumstances  considered,  is  the 
most  eligible  provision,  that  could  have  been  devised. 
It  will  readily  be  understood,  that  the  fluctuations  in 
the  value  of  money,  and  in  the  state  of  society,  render- 
ed a  fixed  rate  of  compensation  in  the  constitution  inad- 
missible. What  might  be  extravagant  to-day,  might  in 
half  a  century  become  penurious  and  inadequate.  It. 
was  therefore  necessary  to  leave  it  to  the  discretion  of 
the  legislature  to  vary  its  provisions  in  conformity  to 
the  variations  in  circumstances ;    yet  under  such  re- 


604     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

strictions  as  to  put  it  out  of  the  power  of  that  body  to 
change  the  condition  of  the  individual  for  the  worse.  A 
man  may  then  be  sure  of  the  ground,  upon  which  he 
stands  ;  and  can  never  be  deterred  from  his  duty  by 
the  apprehension  of  being  placed  in  a  less  eligible  situa- 
tion. The  clause,  which  has  been  quoted,  combines 
both  advantages.  The  salaries  of  judicial  offices  may, 
from  time  to  time,  be  altered,  as  occasion  shall  require  ; 
yet  so  as  never  to  lessen  the  allowance,  with  which  any 
particular  judge  comes  into  office,  in  respect  to  him.  It 
will  be  observed,  that  a  difference  has  been  made  by 
the  convention  between  the  compensation  of  the  presi- 
dent and  that  of  the  judges.  That  of  the  former  can 
neither  be  increased,  nor  diminished.  That  of  the  latter 
can  only  not  be  diminished.  This  probably  arose  from 
the  difference  in  the  duration  of  the  respective  offices. 
As  the  president  is  to  be  elected  for  no  more  than  four 
years,  it  can  rarely  happen,  that  an  adequate  salary, 
fixed  at  the  commencement  of  that  period,  will  not 
continue  to  be  such  to  its  end.  But  with  regard  to  the 
judges,  who,  if  they  behave  properly,  will  be  secured 
in  their  places  for  hfe,  it  may  well  happen,  especially  in 
the  early  stages  of  the  government,  that  a  stipend, 
which  would  be  very  sufficient  at  their  first  appoint- 
ment, would  become  too  small  in  the  progress  of  their 
service. 

§  847.  "  This  provision  for  the  support  of  the  judges 
bears  every  mark  of  prudence  and  efficacy ;  and  it  may 
be  safely  affirmed,  that,  together  with  the  permanent 
tenure  of  their  offices,  it  affords  a  better  prospect  of 
their  independence,  than  is  discoverable  in  the  consti- 
tutions of  any  of  the  states,  in  regard  to  their  own 
judges.  The  precautions  for  their  responsibility  are 
comprised  in  the  article  respecting  impeachments.  They 


CH.  XXXVIII.]    JUDICIARY — COMPENSATION.  605 

are  liable  to  be  impeached  for  maleconduct  by  the 
house  of  representatives,  and  tried  by  the  senate ;  and, 
if  convicted,  may  be  dismissed  from  office,  and  disquali- 
fied for  holding  any  other.  This  is  the  only  provision 
on  the  point,  which  is  consistent  with  the  necessary  in- 
dependence of  the  judicial  character ;  and  is  the  only 
one,  which  we  find  in  our  own  constitution,  in  respect 
to  our  own  judges." 

§  848.  It  is  almost  unnecessary  to  add,  that,  al- 
though the  constitution  has,  with  so  sedulous  a  care, 
endeavoured  to  guard  the  judicial  department  from 
the  overwhelming  influence  or  power  of  the  other  co- 
ordinate departments  of  the  government,  it  has  not 
conferred  upon  them  any  inviolability,  or  irresponsi- 
bility for  an  abuse  of  their  authority.  On  the  contrary 
for  any  corrupt  violation  or  omission  of  the  high  trusts 
confided  to  the  judges,  they  are  liable  to  be  impeach- 
ed, (as  we  have  already  seen,)  and  upon  conviction  to 
be  removed  from  office.  Thus,  on  the  one  hand,  a  pure 
and  independent  administration  of  public  justice  is 
amply  provided  for;  and,  on  the  other  hand,  an 
urgent  responsibility  secured  for  fidelity  to  the  peo- 
ple. 

§  849.  The  judges  of  the  inferior  courts,  spoken  of 
in  the  constitution,  do  not  include  the  judges  of  courts 
appointed  in  the  territories  of  the  United  States  under 
the  authority,  given  to  congress,  to  regulate  the  territo- 
ries of  the  United  States.  The  courts  of  the  territories 
are  not  constitutional  courts,  in  which  the  judicial  pow- 
er conferred  by  the  constitution  on  the  general  govern- 
ment, can  be  deposited.  They  are  legislative  courts, 
created  in  virtue  of  the  general  sovereignty,  which  ex- 
ists in  the  national  government  over  its  territories.  The 
jurisdiction,  with  which  they  are  invested,  is  not  a  part 


606  CONSTITUTION  OF  THE  U.  STATES.    [BOOK  III. 

of  the  judicial  power,  which  is  defined  in  the  third 
article  of  the  constitution ;  but  arises  from  general 
sovereignty.  In  legislating  for  them,  congress  ex- 
ercise the  combined  powers  of  the  general,  and  of  a 
state  government.  Congress  may,  therefore,  rightfully 
limit  the  tenure  of  office  of  the  judges  of  the  territo- 
rial courts,  as  well  as  their  jurisdiction ;  and  it  has  been 
accordingly  limited  to  a  short  period  of  years. 

§  850.  The  second  section  of  the  third  article  con- 
tains an  exposition  of  the  jurisdiction  appertaining  to 
the  judicial  power  of  the  national  government.  The 
first  clause  is  as  follows :  "  The  judicial  power  shall 
"  extend  to  all  cases  in  law  and  equity  arising  under 
"  this  constitution,  the  laws  of  the  United  States,  and 
"  treaties  made,  or  which  shall  be  made,  under  their 
"  authority ;  to  all  cases  affecting  ambassadors,  other 
"  public  ministers,  and  consuls  ;  to  all  cases  of  admi- 
"  ralty  and  maritime  jurisdiction ;  to  controversies,  to 
"  which  the  United  States  shall  be  a  party  ;  to  contro- 
**  versies  between  two  or  more  states ;  between  a  state 
"and  citizens  of  another  state;  between  citizens  of 
"  different  states  ;  between  citizens  of  the  same  state, 
"  claiming  lands  under  grants  of  different  states  ;  and 
"between  a  state,  or  the  citizens  thereof,  and  foreign 
"  states,  citizens,  or  subjects." 

§  851.  And  first,  the  judicial  power  extends  to  all 
cases  in  law  and  equity,  arising  under  the  constitution, 
the  laws,  and  the  treaties  of  the  United  States.  And 
by  cases  in  this  clause  we  are  to  understand  criminal, 
as  well  as  civil  cases. 

^  852.  The  propriety  af  the  delegation  of  jurisdic- 
tion, "in  cases  arising  under  the  constitution,"  rests 
on  the  obvious  consideration,  that  there  ought  always 
to  be  some  constitutional  method  of  giving  effect  to 


CH.  XXXVIII.]    JUDICIARY JURISDICTION.  607 

constitutional  provisions.  What,  for  instance,  would 
avail  restrictions  on  the  authority  of  the  state  legisla- 
tures, without  some  constitutional  mode  of  enforcing 
the  observance  of  them  ?  The  states  are  by  the  con- 
stitution prohibited  from  doing  a  variety  of  things; 
some  of  which  are  incompatible  with  the  interests  of 
the  Union  ;  others  with  its  peace  and  safety  ;  others 
with  the  principles  of  good  government.  The  impo- 
sition of  duties  on  imported  articles,  the  declaration 
of  war,  and  the  emission  of  paper  money,  are  exam- 
ples of  each  kind.  No  man  of  sense  will  believe,  that 
such  prohibitions  would  be  scrupulously  regarded, 
without  some  effectual  power  in  the  government  to 
restrain,  or  correct  the  infractions  of  them.  The  pow- 
er must  be  either  a  direct  negative  on  the  state  laws, 
or  an  authority  in  the  national  courts  to  overrule  such, 
as  shall  manifestly  be  in  contravention  to  the  constitu- 
tion. The  latter  course  was  thought  by  the  convention 
to  be  preferable  to  the  former  ;  and  it  is,  without  ques- 
tion, by  far  the  most  acceptable  to  the  states. 

^  853.  The  same  reasoning  applies  with  equal 
force  to  "cases  arising  under  the  laws  of  the  United 
States."  In  fact,  the  necessity  of  uniformity  in  the 
interpretation  of  these  laws  would  of  itself  settle  every 
doubt,  that  could  be  raised  on  the  subject.  "  Thirteen 
independent  courts  of  final  jurisdiction  (says  the  Fed- 
eralist) over  the  same  causes  is  a  Hydra  in  govern- 
ment, from  which  nothing  but  contradiction  and  confu- 
sion can  proceed." 

^  854.  There  is  still  more  cogency,  if  it  be  possible, 
in  the  reasoning,  as  applied  to  "  cases  arising  under 
treaties  made,  or  which  shall  be  made,  under  the  au- 
thority of  the  United  States."  Without  this  power, 
there  would  be  perpetual  danger  of  collision,  and  even 


608  CONSTITUTION  OF    THE  U.  STATES.    [bOOK  III. 

of  war,  with  foreign  powers,  and  an  utter  incapacity  to 
fulfil  the  ordinary  obligations  of  treaties.  The  want  of 
this  power  was  (as  we  have  seen)  a  most  mischievous 
defect  in  the  confederation  ;  and  subjected  the  coun- 
try, not  only  to  violations  of  its  plighted  faith,  but  to 
the  gross,  and  almost  proverbial  imputation  of  punic  in- 
sincerity. 

§  855.  It  is  observable,  that  the  language  is,  that 
"  the  judicial  power  shall  extend  to  all  cases  in  laio  and 
equity"  arising  under  the  constitution,  laws,  and  trea- 
ties of  the  United  States.  What  is  to  be  understood 
by  "  cases  in  law  and  equity,"  in  this  clause  7  Plainly, 
cases  at  the  common  law,  as  contradistinguished  from 
cases  in  equity,  according  to  the  known  distinction  in 
the  jurisprudence  of  England,  which  our  ancestors 
brought  with  them  upon  their  emigration,  and  with 
which  all  the  American  states  were  familiarly  acquaint- 
ed. Here,  then,  at  least,  the  constitution  of  the  United 
States  appeals  to,  and  adopts,  the  common  law  to  the 
extent  of  making  it  a  rule  in  the  pursuit  of  remedial 
justice  in  the  courts  of  the  Union.  If  the  remedy  must 
be  in  law,  or  in  equity,  according  to  the  course  of  pro- 
ceedings at  the  common  law,  in  cases  arising  under  the 
constitution,  laws,  and  treaties,  of  the  United  States, 
it  would  seem  irresistibly  to  follow,  that  the  principles 
of  decision,  by  which  these  remedies  must  be  adminis- 
tered, must  be  derived  from  the  same  source.  Hither- 
to, such  has  been  the  uniform  interpretation  and  mode 
of  administering  justice  in  the  courts  of  the  United 
States  in  this  class  of  civil  cases. 

^  856.  Another  inquiry  may  be,  what  constitutes  a 
case,  within  the  meaning  of  this  clause.  It  is  clear,  that 
the  judicial  department  is  authorized  to  exercise  juris- 
diction to  the  full  extent  of  the  constitution,  laws,  and 


CH.  XXXVIII.]    JUDICIARY JURISDICTION.  609 

treaties  of  the  United  States,  whenever  any  question 
respecting  them  shall  assume  such  a  form,  that  the  ju- 
dicial power  is  capable  of  acting  upon  it.  When  it  has 
assumed  such  a  form,  it  then  becomes  a  case ;  and  then, 
and  not  till  then,  the  judicial  power  attaches  to  it.  A 
case,  then,  in  the  sense  of  this  clause  of  the  constitu- 
tion, arises,  when  some  subject,  touching  the  constitu- 
tion, laws,  or  treaties  of  the  United  States,  is  submitted 
to  the  courts  by  a  party,  who  asserts  his  rights  in  the 
form  prescribed  by  law.  In  other  words,  a  case  is  a 
suit  in  law  or  equity,  instituted  according  to  the  regu- 
lar course  of  judicial  proceedings  ;  and,  when  it  involves 
any  question  arising  under  the  constitution,  laws,  or 
treaties  of  the  United  States,  it  is  within  the  judicial 
power  confided  to  the  Union. 

^  857.  Cases  arising  under  the  constitution,  as  con- 
tradistinguished from  those,  arising  under  the  laws  of 
the  United  States,  are  such  as  arise  from  the  powers 
conferred,  or  privileges  granted,  or  rights  claimed,  or 
protection  secured,  or  prohibitions  contained  in  the 
constitution  itself,  independent  of  any  particular  statute 
enactment.  Many  cases  of  this  sort  may  easily  be 
enumerated.  Thus,  if  a  citizen  of  one  state  should  be 
denied  the  privileges  of  a  citizen  in  another  state ;  if  a 
state  should  coin  money,  or  make  paper  money  a  tender; 
if  a  person,  tried  for  a  crime  against  the  United  States, 
should  be  denied  a  trial  by  jury,  or  a  trial  in  the  state, 
where  the  crime  is  charged  to  be  committed ;  if  a  per- 
son, held  to  labour  or  service  in  one  state,  under  the 
laws  thereof,  should  escape  into  another,  and  there 
should  be  a  refusal  to  deliver  him  up  to  the  party,  to 
whom  such  service  or  labour  may  be  due ;  in  these, 
and  many  other  cases,  the  question,  to  be  judicially  de- 
cided, would  be  a  case  arising  under  the  constitution. 

Ahr.  77 


610  CONSTITUTION  OF  THE  U.  STATES.     [bOOK  III. 

On  the  other  hand,  cases  arising  under  the  laws  of  the 
United  States  are  such,  as  grow  out  of  the  legislation 
of  congress,  within  the  scope  of  their  constitutional  au- 
thority, whether  they  constitute  the  right,  or  privilege, 
or  claim,  or  protection,  or  defence,  in  whole  or  in  part,  of 
the  party,  by  whom  they  are  asserted.  The  same  rea- 
soning applies  to  cases  arising  under  treaties.  Indeed, 
wherever,  in  a  judicial  proceeding,  any  question  arises, 
touching  the  vahdity  of  a  treaty,  or  statute,  or  authori- 
ty, exercised  under  the  United  States,  or  touching  the 
construction  of  any  clause  of  the  constitution,  or  any 
statute,  or  treaty  of  the  United  States  ;  or  touching  the 
vahdity  of  any  statute,  or  authority  exercised  under  any 
state,  on  the  ground  of  repugnancy  to  the  constitution, 
laws,  or  treaties,  of  the  United  States,  it  has  been  inva- 
riably held  to  be  a  case,  to  which  the  judicial  power  of 
the  United  States  extends. 

§  858.  It  has  sometimes  been  suggested,  that  a  case, 
to  be  within  the  purview  of  this  clause,  must  be  one,  in 
which  a  party  comes  into  court  to  demand  something 
conferred  on  him  by  the  constitution,  or  a  law,  or  a 
treaty,  of  the  United  States.  But  this  construction  is 
clearly  too  narrow.  A  case  in  law  or  equity  consists 
of  the  right  of  the  one  party,  as  well  as  of  the  other, 
and  may  truly  be  said  to  arise  under  the  constitution, 
or  a  law,  or  a  treaty,  of  the  United  States,  whenever  its 
correct  decision  depends  on  the  construction  of  either. 
This  is  manifestly  the  construction  given  to  the  clause 
by  congress,  by  the  25th  section  of  the  Judiciary  Act, 
(which  was  almost  contemporaneous  with  the  constitu- 
tion,) and  there  is  no  reason  to  doubt  its  solidity  or 
correctness.  Indeed,  the  main  object  of  this  clause 
would  be  defeated  by  any  narrower  construction ;  since 
the  power  was  conferred  for  the  purpose,  in  an  espe- 


CH.  XXXVIII.]    JUDICIARY JURISDICTION.  611 

cial  manner,  of  producing  auniformity  of  construction  of 
the  constitution,  laws,  and  treaties  of  the  United  States. 

§  859.  Cases  may  also  arise  under  laws  of  the  Unit- 
ed States  by  implication,  as  well  as  by  express  enact- 
ment ;  so,  that  due  redress  may  be  administered  by 
the  judicial  power  of  the  United  States.  It  is  not  unu- 
sual for  a  legislative  act  to  involve-consequences,  which 
are  not  expressed.  An  officer,  for  example,  is  order- 
ed to  arrest  an  individual.  It  is  not  necessary,  nor  is  it 
usual,  to  say,  that  he  shall  not  be  punished  for  obeying 
this  order.  His  security  is  implied  in  the  order  itself. 
It  is  no  unusual  thing  for  an  act  of  congress  to  imply, 
without  expressing,  this  very  exemption  from  state 
control.  The  collectors  of  the  revenue,  the  carriers  of 
the  mail,  the  mint  establishment,  and  all  those  institu- 
tions, which  are  public  in  their  nature,  are  examples  in 
point.  It  has  never  been  doubted,  that  all  persons,  who 
are  employed  in  them,  are  protected,  while  in  the  line  of 
their  duty ;  and  yet  this  protection  is  not  expressed  in 
any  act  of  congress.  It  is  incidental  to,  and  is  im- 
plied in,  the  several  acts,  by  which  those  institutions 
are  created;  and  is  secured  to  the . individuals,  em- 
ployed in  them,  by  the  judicial  power  alone  ;  that 
is,  the  judicial  power  is  the  instrument  employed  by 
the  government  in  administering  this  security. 

^  860.  It  has  also  been  asked,  and  may  again  be 
afeked,  why  the  words,  "  cases  in  equity,"  are  found 
in  this  clause  ?  What  equitable  causes  can  grow  out 
of  the  constitution,  laws,  and  treaties  of  the  United 
States  1  To  this  the  general  answer  of  the  Feder- 
ahst  seems  at  once  clear  and  satisfactory.  "There 
is  hardly  a  subject  of  Htigation  between  individuals, 
which  may  not  involve  those  ingredients  of  fraud, 
accident,  trust,  or  hardship,  which  would  render  the 


612   CONSTITUTION  OF  THE  U,  STATES.   [bOOK  III. 

matter  an  object  of  equitable,  rather  than  of  legal  juris- 
diction, as  the  distinction  is  known  and  established  in 
several  of  the  states.  It  is  the  peculiar  province,  for 
instance,  of  a  court  of  equity,  to  relieve  against  what 
are  called  hard  bargains.  These  are  contracts,  in  which, 
though  there  may  have  been  no  direct  fraud  or  deceit, 
sufficient  to  invalidate  them  in  a  court  of  law  ;  yet  there 
may  have  been  some  undue,  and  unconscionable  advan- 
tage taken  of  the  necessities,  or  misfortunes  of  one 
of  the  parties,  which  a  court  of  equity  would  not  tol- 
erate. In  such  cases,  where  foreigners  are  con- 
cerned on  either  side,  it  would  be  impossible  for  the 
federal  judicatories  to  do  justice,  without  an  equitable, 
as  well  as  a  legal  jurisdiction.  Agreements  to  convey 
lands,  claimed  under  the  grants  of  different  states,  may 
afford  another  example  of  the  necessity  of  an  equitable 
jurisdiction  in  the  federal  courts.  This  reasoning  may 
not  be  so  palpable  in  those  states,  where  the  formal  and 
technical  distinction  between  law  and  equity  is  not 
maintained,  as  in  this  state,  where  it  is  exemplified  by 
every  day's  practice." 

§  861.  The  next  clause,  extends  the  judicial  power 
"  to  all  cases  affecting  ambassadors,  other  public  min- 
isters, and  consuls."  The  propriety  of  this  delegation 
of  power  to  the  national  judiciary  will  scarcely  be  ques- 
tioned by  any  persons,  who  have  duly  reflected  upon 
the  subject.  There  are  various  grades  of  public  minis- 
ters, from  ambassadors  (which  is  the  highest  grade,) 
down  to  common  resident  ministers,  whose  rank,  and 
diplomatic  precedence,  and  authority,  are  well  known, 
and  well  ascertained  in  the  law^  and  usages  of  nations. 
But  whatever  may  be  their  relative  rank  and  grade, 
public  ministers  of  every  class  are  the  immediate  repre- 
sentatives of  their  sovereigns.     As  such  representatives. 


CH.  XXXVIII.]    JUDICIARY JURISDICTION.  613 

they  owe  no  subjection  to  any  laws,  but  those  of  their 
own  country,  any  more  than  their  sovereign ;  and  their 
actions  are  not  generally  deemed  subject  to  the  con- 
trol of  the  private  law  of  that  state,  wherein  they  are 
appointed  to  reside.  He,  that  is  subject  to  the  coer- 
cion of  laws,  is  necessarily  dependent  on  that  power, 
by  which  those  laws  were  made.  But  public  minis- 
ters ought,  in  order  to  perform  their  duties  to  their 
own  sovereign,  to  be  independent  of  every  power, 
except  that  by  which  they  are  sent ;  and,  of  conse- 
quence, ought  not  to  be  subject  to  the  mere  munici- 
pal law  of  that  nation,  wherein  they  are  to  exercise 
their  functions.  The  rights,  the  powers,  the  duties, 
and  the  privileges  of  public  ministers  are,  therefore, 
to  be  determined,  not  by  any  municipal  constitutions, 
but  by  the  law  of  nature  and  nations,  which  is  equal- 
ly obligatory  upon  all  sovereigns,  and  all  states.  What 
these  rights,  powers,  duties,  and  privileges  are,  are  in- 
quiries properly  belonging  to  a  treatise  on  the  law  of 
nations,  and  need  not  be  discussed  here.  But  it  is 
obvious,  that  every  question,  in  which  these  rights, 
powers,  duties,  and  privileges  are  involved,  is  so  inti- 
mately connected  with  the  public  peace,  and  policy,  and 
diplomacy  of  the  nation,  and  touches  the  dignity  and 
interest  of  the  sovereigns  of  the  ministers  concerned  so 
deeply,  that  it  would  be  unsafe,  that  they  should  be 
submitted  to  any  other,  than  the  highest  judicature  of 
the  nation. 

§  862.  Consuls,  indeed,  have  not  in  strictness  a 
diplomatic  character.  They  are  deemed  mere  com- 
mercial agents  ;  and  therefore  partake  of  the  ordinary 
character  of  such  agents  ;  and  are  subject  to  the  mu- 
nicipal laws  of  the  countries,  where  they  reside.  Yet, 
as  they  are  the  public  agents  of  the  nation,  to  which 


614        CONSTITUTION  OF  THE  U.  STATES.       [»00K  III. 

they  belong,  and  are  often  entrusted  with  the  perform- 
ance of  very  delicate  functions  of  state,  and  as  they 
might  be  greatly  embarrassed  by  being  subject  to  the 
ordinary  jurisdiction  of  inferior  tribunals,  state  and  na- 
tional, it  was  thought  highly-  expedient  to  extend  the 
original  jurisdiction  of  the  Supreme  Court  to  them  also. 
The  propriety  of  vesting  jurisdiction,  in  such  cases,  in 
some  of  the  national  courts  seems  hardly  to  have  been 
questioned  by  the  most  zealous  opponents  of  the  con- 
stitution. And  in  cases  against  ambassadors,  and  other 
foreign  ministers,  and  consuls,  the  jurisdiction  has  been 
deemed  exclusive. 

^  863.  The  next  clause  extends  the  judicial  power 
"  to  all  cases  of  admiralty  and  maritime  jurisdiction." 

^  864.  The  admiralty  and  maritime  jurisdiction, 
(and  the  word,  "  maritime,"  was  doubdess  added  to 
guard  against  any  narrow  interpretation  of  the  preced- 
ing word,  "  admiralty,")  conferred  by  the  constitution, 
embraces  two  great  'classes  of  cases,  one  dependent 
upon  locality,  and  the  other  upon  the  nature  of  the  con- 
tract. The  first  respects  acts  or  injuries  done  upon 
the  high  sea,  where  all  nations  claim  a  common  right 
and  common  jurisdiction  ;  or  acts,  or  injuries  done 
upon  the  coast  of  the  sea  ;  or,  at  farthest,  acts  and  in- 
juries done  within  the  ebb  and  flow  of  the  tide.  The 
second  respects  contracts,  claims,  and  services  purely 
maritime,  and  touching  rights  and  duties  appertaining 
to  commerce  and  navigation.  The  former  is  again  di- 
visible into  two  great  branches,  one  embracing  captures, 
and  questions  of  prize,  arising /M?'e  belli;  the  other  em- 
bracing acts,  torts,  and  injuries  strictly  of  civil  cogniz- 
ance, independent  of  belligerent  operations. 

^  865.  By  the  law  of  nations  the  cognizance  of  all 
captures,  jure  belliy  or,  as  it  is  more  familiarly  phrased, 


CH.  XXXVIII.]    JUDICIARY JURISDICTION.  615 

of  all  questions  of  prize,  and  their  incidents,  belongs 
exclusively  to  the  courts  of  the  country,  to  which  the 
captors  belong,  and  from  whom  they  derive  their  au- 
thority to  make  .the  capture.  No  neutral  nation  has 
any  right  to  inquire  into,  or  to  decide  upon,  the  validi- 
ty of  such  capture,  even  though  it  should  concern 
property  belonging  to  its  own  citizens  or  subjects,  un- 
less its  own  sovereign  or  territorial  rights  are  violated ; 
but  the  sole  and  exclusive  jurisdiction  belongs  to  the 
courts  of  the- capturing  belligerent.  And  this  jurisdic- 
tion, by  the  common  consent  of  nations,  is  vested  ex- 
clusively in  courts  of  admiralty,  possessing  an  original, 
or  an  appellate  jurisdiction.  The  courts  of  common  law 
are  bound  to  abstain  from  any  decision  of  questions  of 
this  sort,  whether  they  arise  directly  or  indirectly  in 
judgment.  The  remedy  for  illegal  acts  of  capture  is  by 
the  institution  of  proper  prize  proceedings  in  the  prize 
courts  of  the  captors.  If  justice  be  there  denied,  the 
nation  itself  becomes  responsible  to  the  parties  aggriev- 
ed ;  and  if  every  remedy  is  refused,  it  then  becomes  a 
subject  for  the  consideration  of  the  nation,  to  w^hich  the 
parties  aggrieved  belong,  which  may  vindicate  their 
rights,  either  by  a  peaceful  appeal  to  negotiation,  or  by  a 
resort  to  arms. 

§  866.  It  is  obvious  upon  the  slightest  consideration, 
that  cognizance  of  all  questions  of  prize,  made  under 
the  authority  of  the  United  States,  ought  to  belong  ex- 
clusively to  the  national  courts.  How,  otherwise,  can 
the  legality  of  the  captures  be  satisfactorily  ascertained, 
or  deliberately  vindicated  ?  It  seems  not  only  a  natu- 
ral, but  a  necessary  appendage  to  the  power  of  war, 
and  negotiation  with  foreign  nations.  It  would  other- 
wise follow,  that  the  peace  of  the  whole  nation  might 
be  put  at  hazard  at  any  time  by  the  misconduct  of  one 


616  CONSTITUTION  OF  THE  U.  STATES.     [bOOK  III. 

of  its  members.  It  could  neither  restore  property  upon 
an  illegal  capture ;  nor  in  many  cases  afford  any  adequate 
redress  for  the  wrong ;  nor  punish  the  aggressor.  It 
would  be  powerless  and  palsied.  It  could  not  perform, 
or  compel  the  performance  of  the  duties  required  by 
the  law  of  nations.  It  would  be  a  sovereign  wdthout 
any  solid  attribute  of  sovereignty  ;  and  move  m  vincu- 
lis  only  to  betray  its  imbecility.  Even  under  the  con- 
federation, the  power  to  decide  upon  questions  of  cap- 
ture and  prize  w^as  exclusively  conferred  in  the  last 
resort  upon  the  national  court  of  appeals.  But  like  all 
other  powers  conferred  by  that  instrument,  it  was  to- 
tally disregarded,  wherever  it  interfered  with  state 
policy,  or  with  extensive  popular  interests.  We  have 
seen,  that  the  sentences  of  the  national  prize  court  of 
appeals  w^ere  treated,  as  mere  nullities ;  and  were  inca- 
pable of  being  enforced,  until  after  the  establishment  of 
the  present  constitution.  The  same  reasoning,  which 
conducts  us  to  the  conclusion,  that  the  national  courts 
ought  to  have  jurisdiction  of  this  class  of  admiralty 
cases,  conducts  us  equally  to  the  conclusion,  that,  to  be 
effectual  for  the  administration  of  international  justice, 
it  ought  to  be  exclusive.  And  accordingly  it  has  been 
constantly  held,  that  this  jurisdiction  is  exclusive  in  the 
courts  of  the  United  States. 

^  867.  The  other  branch  of  admiralty  jurisdiction, 
dependent  upon  locality,  respects  civil  acts,  torts,  and 
injuries  done  on  the  sea,  or  (in  certain  cases)  on  waters 
of  the  sea,  where  the  tide  ebbs  and  flows,  without  any 
claim  of  exercising  the  rights  of  war.  Such  are  cases 
of  assaults,  and  other  personal  injuries;  cases  of  collision, 
or  running  of  ships  against  each  other  ;  cases  of  spolia- 
tion and  damage,  (as  they  are  technically  called,)  such 
as  illegal  seizures,  or    depredations  upon  property; 


CH.  XXXVIII.]    JUDICIARY  —  JURISDICTION.  617 

cases  of  illegal  dispossession,  or  withholding  possession 
from  the  owners  of  ships,  commonly  called  possessory 
suits ;  cases  of  seizures  under  municipal  authority  for 
supposed  breaches  of  revenue,  or  other  prohibitory 
laws  ;  and  cases  of  salvage  for  meritorious  services  per- 
formed in  saving  property,  whether  derelict,  or  wreck- 
ed, or  captured,  or  otherwise  in  imminent  hazard  froni 
extraordinary  perils. 

^  868.  It  is  obvious,  that  this  class  of  cases  has,  or 
may  have,  an  intimate  relation  to  the  rights  and  duties 
of  foreigners  in  navigation  and  maritime  commerce.  It 
may  materially  affect  our  intercourse  with  foreign  states ; 
and  raise  many  questions  of  international  law,  not  merely 
touching  private  claims,  but  national  sovereignty,  and 
nauonal  reciprocity.  Thus,  for  instance,  if  a  collisioa 
should  take  place  at  sea  between  an  American  and  a 
foreign  ship,  many  important  questions  of  public  law 
might  be  connected  with  its  just  decision  ;  for  it  is  ob- 
vious, that  it  could  not  be  governed  by  the  mere 
municipal  law  of  either  country.  So,  if  a  case  of  recap-v 
ture,  or  other  salvage  service  performed  to  a  foreign 
ship,  should  occur,  it  must  be  decided  by  the  general 
principles  of  maritime  law,  and  the  doctrines  of  national 
reciprocity.  Where  a  recapture  is  made  of  a  friendly 
ship  from  the  hands  of  its  enemy,  the  general  doctrine 
now  established  is,  to  restore  it  upon  salvage,  if  the 
foreign  country,  to  which  it  belongs,  adopts  a  recipror 
cal  rule  ;  or  to  condemn  it  to  the  recaptors,  if  the  like 
rule  is  adopted  in  the  foreign  country.  And  in  other 
cases  of  salvage  the  doctrines  of  international  and  mari- 
time law  come  into  full  activity,  rather  than  those  of 
any  mere  municipal  code.  There  is,  therefore,  a  pe- 
culiar fitness  in  appropriating  this  class  of  cases  to  the 
national  tribunals ;  since  they  will  be  more  likely  to  b^ 

Abr,  78 


618    CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

there  decided  upon  large  and  comprehensive  principles, 
and  to  receive  a  more  uniform  adjudication  ;  and  thus 
to  become  more  satisfactory  to  foreigners. 

§  869.  The  remaining  class  respects  contracts,  claims, 
and  services  purely  maritime.  Among  these  are  the 
claims  of  material-men  and  others  for  repairs  and  out- 
fits of  ships,  belonging  to  foreign  nations,  or  to  other 
states  ;  bottomry  bonds  for  monies  lent  to  ships  in  for- 
eign ports  to  relieve  their  distresses,  and  enable  them 
to  complete  their  voyages ;  surveys  of  vessels  damaged 
by  perils  of  the  seas ;  pilotage  on  the  high  seas  ;  and 
suits  for  mariners'  v^^ages.  These,  indeed,  often  arise 
in  the  course  of  the  commerce  and  navigation  of  the 
United  States ;  and  seem  emphatically  to  belong,  as 
incidents,  to  the  power  to  regulate  commerce.  But 
they  may  also  affect  the  commerce  and  navigation  of 
foreign  nations.  Repairs  may  be  done,  and  supplies 
furnished  to  foreign  ships  ;  money  may  be  lent  on  for- 
eign bottoms  ;  pilotage  and  mariners'  w^ages  may  be- 
come due  in  voyages  in  foreign  employment ;  and  in 
such  cases  the  general  maritime  law  enables  the  courts 
of  admiralty  to  administer  a  wholesome  and  prompt 
justice.  Indeed,  in  many  of  these  cases,  as  the  courts 
of  admiralty  entertain  suits  in  rem,  as  well  as  in  per- 
sonam, they  are  often  the  only  courts,  in  which  an  effec- 
tual redress  can  be  afforded,  especially  when  it  is  de- 
sirable to  enforce  a  specific  maritime  Hen. 

^  870.  So  that  we  see,  that  the  admiralty  jurisdiction 
naturally  connects  itself,  on  the  one  hand,  with  our 
diplomatic  relations  and  duties  to  foreign  nations,  and 
their  subjects  ;  and,  on  the  other  hand,  with  the  great 
interests  of  navigation  and  commerce,  foreign  and  do- 
mestic. There  is,  then,  a  peculiar  wisdom  in  giving  to 
the  national  government  a  jurisdiction  of  this  sort,  which 


CH.  XXXVIII.]    JUDICIARY  —  JURISDICTION.  619 

cannot  be  wielded,  except  for  the  general  good ;  and 
which  multiplies  the  securities  for  the  public  peace 
abroad,  and  gives  to  commerce  and  navigation  the  most 
encouraging  support  at  home.  It  may  be  added,  that, 
in  many  of  the  cases  included  in  these  latter  classes, 
the  same  reasons  do  not  exist,  as  in  cases  of  prize,  for 
an  exclusive  jurisdiction ;  and,  therefore,  whenever  the 
common  law  is  competent  to  give  a  remedy  in  the  state 
courts,  they  may  retain  their  accustomed  concurrent 
jurisdiction  in  the  administration  of  it. 

^871.  We  have  been  thus  far  considering  the  ad- 
miralty and  maritime  jurisdiction  in  civil  cases  only. 
But  it  also  embraces  all  public  offences,  committed  on 
the  high  seas,  and  in  creeks,  havens,  basins,  and  bays 
within  the  ebb  and  flow  of  the  tide,  at  least  in  such  as 
are  out  of  the  body  of  any  county  of  a  state.  In  these 
places  the  jurisdiction  of  the  courts  of  admiralty  over 
offences  is  exclusive  ;  for  that  of  the  courts  of  common 
law  is  limited  to  such  offences,  as  are  committed  with- 
in the  body  of  some  county.  And  on  the  sea  coast, 
there  is  an  alternate,  or  divided  jurisdiction  of  the  courts 
of  common  law,  and  admiralty,  in  places  between  high 
and  low  water  mark  ;  the  former  having  jurisdiction 
when,  and  as  far  as  the  tide  is  out,  and  the  latter  when, 
and  as  far  as  the  tide  is  in,  usque  ad  filum  aquce,  or  to 
high  water  mark.  This  criminal  jurisdiction  of  the  ad- 
miralty is  therefore  exclusively  vested  in  the  national 
government ;  and  may  be  exercised  over  such  crimes 
and  offences,  as  congress  may,  from  time  to  time,  dele- 
gate to  the  cognizance  of  the  national  courts.  The 
propriety  of  vesting  this  criminal  jurisdiction  in  the  na- 
tional government  depends  upon  the  same  reasoning, 
and  is  established  by  the  same  general  considerations, 
as  have  been  already  suggested  in  regard  to  civil  cases 


620  CONSTITUTION  OF  THE  U.  STATES.        [bOOK    III. 

It  is  essentially  connected  with  the  due  regulation,  and 
protection  of  our  commerce  and  navigation  on  the  high 
seas,  and  with  our  rights  and  duties  in  regard  to  foreign 
nations,  and  their  subjects,  in  the  exercise  of  common 
sovereignty  on  the  ocean.  The  states,  as  such,  are  not 
known  in  our  intercourse  with  foreign  nations,  and  not 
recognised  as  common  sovereigns  on  the  ocean.  And 
if  they  were  permitted  to  exercise  criminal  or  civil  juris- 
diction thereon,  there  would  be  endless  embarrass- 
ments, arising  from  the  conflict  of  their  laws,  and  the 
most  serious  dangers  of  perpetual  controversies  with 
foreign  nations*  In  short,  the  peace  of  the  Union  would 
be  constantly  put  at  hazard  by  acts,  over  which  it  had 
no  control ;  and  by  assertions  of  right,  which  it  might 
wholly  disclaim. 

§  872.  The  next  clause  extends  the  judicial  power 
"  to  controversies,  to  which  the  United  States  shall  be 
a  party."  It  seems  scarcely  possible  to  raise  a  reason- 
able doubt,  as  to  the  propriety  of  giving  to  the  nation- 
al courts  jurisdiction  of  cases,  in  which  the  United 
States  are  a  party.  It  would  be  a  perfect  novelty  in 
the  history  of  national  jurisprudence,  as  well  as  of  pub- 
lic law,  that  a  sovereign  had  no  authority  to  sue  in  his 
own  courts.  Unless  this  power  were  given  to  the 
United  States,  the  enforcement  of  all  their  rights,  pow- 
ers, contracts,  and  privileges  in  their  sovereign  capacity 
would  be  at  the  mercy  of  the  states*  They  must  be 
enforced,  if  at  all,  in  the  state  tribunals.  And  there 
would  not  only  not  be  any  compulsory  power  over 
those  courts  to  perform  such  functions ;  but  there  would 
not  be  any  means  of  producing  uniformity  in  their  de- 
cisions. A  sovereign,  without  the  means  of  enforcing 
civil  rights,  or  compelling  the  performance,  either  civilly 
or  criminally,  of  public  duties  on  the  part  of  the  citizens, 


CH.  XXXVIII.]    JUDICIARY JURISDICTION.  621 

would  be  a  most  extraordinary  anomaly.  Such  a  de- 
fect would  prostrate  the  Union  at  the  feet  of  the  states. 
It  would  compel  the  national  government  to  become  a 
supplicant  for  justice  before  the  judicature  of  those,  who 
were  by  other  parts  of  the  constitution  placed  in  subor- 
dination to  it. 

^  873.  The  next  clause  extends  the  judicial  power 
' "  to  controversies  between  two  or  more  states ;  be- 
"  tween  a  state  and  the  citizens  of  another  state  ;  be- 
"  tween  citizens  of  different  states,  claiming  lands  un- 
"der  grants  of  different  states;  and  between  a  state 
"  or  the  citizens  thereof,  and  foreign  states,  citizens,  or 
"  subjects."  Of  these,  we  will  speak  in  their  order. 
And,  first ;  "controversies  between  two  or  more  states." 
This  power  seems  to  be  essential  to  the  preservation 
of  the  peace  of  the  Union.  "History"  (says  the 
Federalist,)  "  gives  us  a  horrid  picture  of  the  dissen- 
sions and  private  wars,  which  distracted  and  desolated 
Germany,  prior  to  the  institution  of  the  imperial  cham- 
ber by  Maximilian,  towards  the  close  of  the  fifteenth 
century ;  and  informs  us  at  the  same  time  of  the  vast 
influence  of  that  institution,  in  appeasing  the  disorders, 
and  estabhshing  the  tranquillity  of  the  empire.  This 
was  a  court  invested  with  authority  to  decide  finally 
all  differences  among  the  members  of  the  Germanic 
body."  But  we  need  not  go  for  illustrations  to  the 
history  of  other  countries.  Our  own  has  presented,  in 
past  times,  abundant  proofs  of  the  irritating  effects 
resulting  from  territorial  disputes,  and  interfering  claims, 
of  boundary  between  the  states.  And  there  are  yet 
controversies  of  this  sort,  which  have  brought  on  a  bor- 
der warfare,  at  once  dangerous  to  public  repose,  and 
incompatible  with  the  public  interests. 

^  874.  Under  the  confederation,  authority  was  given 


622  CONSTITUTION  OF  THE  U.  STATES.        [bOOK  III. 

to  the  national  government,  to  hear  and  determine, 
(in  the  manner  pointed  out  in  the  article,)  in  the 
last  resort,  on  appeal,  all  disputes  and  differences  be- 
tween two  or  more  states  concerning  boundary,  juris- 
diction, or  any  other  cause  whatsoever.  Before  the 
adoption  of  this  instrument,  as  well  as  afterwards,  very 
irritating  and  vexatious  controversies  existed  between 
several  of  the  states,  in  respect  to  soil,  jurisdiction,  and 
boundary;  and  threatened  the  most  serious  public 
mischiefs.  Some  of  these  controversies  were  heard 
and  determined  by  the  court  of  commissioners,  ap- 
pointed by  congress.  But,  notwithstanding  these  ad- 
judications, the  conflict  was  maintained  in  some  cases, 
until  after  the  establishment  of  the  present  constitu- 
tion. 

^  875.  Before  the  revolution,  controversies  between 
the  colonies,  concerning  the  extent  of  their  rights  of 
soil,  territory,  jurisdiction,  and  boundary,  under  their 
respective  charters,  were  heard  and  determined  before 
the  king  in  council,  who  exercised  original  jurisdiction 
therein,  upon  the  principles  of  feudal  sovereignty.  This 
jurisdiction  was  often  practically  asserted,  as  in  the  case 
of  the  dispute  between  Massachusetts  and  New-Hamp- 
shire, decided  by  the  privy  council,  in  1679;  and  in 
the  case  of  the  dispute  between  New-Hampshire  and 
New-York,  in  1764.  Lord  Hardwicke  recognised  this 
appellate  jurisdiction  in  the  most  deliberate  manner,  in 
the  great  case  of  Penn  v.  Lord  Baltimore,  The  same 
necessity,  which  gave  rise  to  it  in  our  colonial  state,  must 
continue  to  operate  through  all  future  time.  Some  tribu- 
nal, exercising  such  authority,  is  essential  to  prevent  an 
appeal  to  the  sword,  and  a  dissolution  of  the  government. 
That  it  ought  to  be  established  under  the  national, 
rather  than  under  the  state,  government ;  or,  to  speak 


CH.  XXXVIII.]      JUDICIARY  —  JURISDICTION.  623 

more  properly,  that  it  can  be  safely  established^under 
the  former  only,  would  seem  to  be  a  position  self-evi- 
dent, and  requiring  no  reasoning  to  support  it.  It  may 
justly  be  presumed,  that  under  the  national  govern- 
ment in  all  controversies  of  this  sort,  the  decision  will 
be  impartially  made  according  to  the  principles  of  jus- 
tice ;  and  all  the  usual  and  most  effectual  precautions 
are  taken  to  secure  this  impartiality,  by  confiding  it  to 
the  highest  judicial  tribunal. 

^  876.  Next ;  "controversies  between  a  state  and 
the  citizens  of  another  state."  "There  are  other 
sources,"  says  the  Federalist,  "besides  interfering 
claims  of  boundary,  from  which  bickerings  and  ani- 
mosities may  spring  up  among  the  members  of  the 
Union.  To  some  of  these  we  have  been  witnesses  in 
the  course  of  our  past  experience.  It  will  be  readily 
conjectured,  that  I  allude  to  the  fraudulent  laws,  which 
have  been  passed  in  too  many  of  the  states.  And 
though  the  proposed  constitution  establishes  particu- 
lar guards  against  the  repetition  of  those  instances, 
which  have  hitherto  made  their  appearance ;  yet  it  is 
warrantable  to  apprehend,  that  the  spirit,  which  pro- 
duced them,  will  assume  new  shapes,  that  could 
not  be  foreseen,  nor  specifically  provided  against. 
Whatever  practices  may  have  a  tendency  to  distract 
the  harmony  of  the  states  are  proper  objects  of  fed- 
eral superintendence  and  control.  It  may  be  esteem- 
ed the  basis  of  the  Union,  that  '  the  citizens  of  each 
state  shall  be  entitled  to  all  the  privileges  and  immu- 
nities of  citizens  of  the  several  states.'  And  if  it  be 
a  just  principle,  that  every  government  ought  to  pos- 
sess the  means  of  executing  its  own  provisions  by  its 
own  authority,  it  will  follow,  that,  in  order  to  the  in- 
violable maintenance  of  that  equality  of  privileges  and 


624   CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

immunities,  to  which  the  citizens  of  the  Union  will 
be  entitled,  the  national  judiciary  ought  to  preside  in 
all  cases,  in  which  one  state,  or  its  citizens,  are  opposed 
to  another  state,  or  its  citizens.  To  secure  the  full 
effect  of  so  fundamental  a  provision  against  all  evasion 
and  subterfuge,  it  is  necessary,  that  its  construction 
should  be  committed  to  that  tribunal,  which,  hav- 
ing  no  local  attachments,  will  be  likely  to  be  impar- 
tial between  the  different  states  and  their  cidzens, 
and  which,  owing  its  official  existence  to  the  Union, 
will  never  be  Hkely  to  feel  any  bias  inauspicious  to 
the  principles,  on  which  it  is  founded."  It  is  added, 
"  The  reasonableness  of  the  agency  of  the  national 
courts  in  cases,  in  which  the  state  tribunals  cannot  be 
supposed  to  be  impartial,  speaks  for  it.  No  man 
ought  certainly  to  be  a  judge  in  his  own  cause,  or  in 
any  cause,  in  respect  to  which  he  has  the  least  interest 
or  bias.  This  principle  has  no  inconsiderable  weight 
in  designaung  the  federal  courts,  as  the  proper  tribunals 
for  the  determination  of  controversies  between  different 
states  and  their  citizens." 

^  877.  And  here  a  most  important  question  of  a 
constitutional  nature  was  formerly  litigated ;  and  that 
is,  whether  the  jurisdiction  given  by  the  constitution  in 
cases,  in  which  a  state  is  a  party,  extended  to  suits 
brought  against  a  state,  as  well  as  by  it,  or  was  exclu- 
sively confined  to  the  latter.  It  is  obvious,  that,  if 
a  suit  could  be  brought  by  any  citizen  of  one  state 
against  another  state  upon  any  contract,  or  matter  of 
property,  the  state  would  be  constantly  subjected  to 
judicial  action,  to  enforce  private  rights  against  it  in 
its  sovereign  capacity.  Accordingly  at  a  very  early- 
period  numerous  suits  were  brought  against  states 
by  their  creditors  to  enforce   the  payment  of  debts, 


CH.  XXXVIII.]      JUDICIARY — JURISDICTION.  625 

or  other  claims.  The  question  was  made,  and 
most  elaborately  considered  in  the  celebrated  case  of 
Chishohn  v.  Georgia;  and  the  majority  of  the  Su- 
preme Court  held,  that  the  judicial  power  under  the 
constitution  applied  equally  to  suits  >  brought  %  and 
against  a  state.  The  learned  judges,  on  that  occa- 
sion, delivered  seriatim  opinions,  containing  the 
grounds  of  their  respective  opinions.  It  is  not  my 
intention  to  go  over  these  grounds,  though  they  are 
stated  with  great  ability  and  legal  learning,  and  ex- 
hibit a  very  thorough  mastery  of  the  whole  subject. 
The  decision  created  general  alarm  among  the  states  ; 
and  an  amendment  was  proposed,  and  ratified  by  the 
states,  by  which  the  power  was  entirely  taken  away, 
so  far  as  it  regards  suits  brought  against  a  state.  It 
is  in  the  following  words  :  "  The  judicial  power  of  the 
"  United  States  shall  not  be  construed  to  extend  to 
"  any  suit  in  law,  or  equity,  commenced  or  prosecuted 
^^  against  one  of  the  United  States  hy  citizens  of 
"another  state,  or  by  citizens,  or  subjects  of  any 
"  foreign  state."  This  amendment  was  construed  to 
include  suits  then  pending,  as  well  as  suits  to  be  com- 
menced thereafter ;  and  accordingly  all  the  suits  then 
pending  were  dismissed,  without  any  further  adjudica- 
tion. 

^  878.  Since  this  amendment  has  been  made,  a 
question  of  equal  importance  has  arisen ;  and  that  is, 
whether  the  amendment  appHes  to  original  suits  only 
brought  against  a  state,  leaving  the  appellate  jurisdic- 
tion of  the  Supreme  Court  in  its  full  vigour  over  all 
constitutional  questions,  arising  in  the  progress  of  any 
suit  brought  by  a  state  in  any  state  court  against  any 
private  citizen  or  alien.  But  this  question  will  more 
properly  come  under  review,  when  -we  are  considering 

Abr.  79 


626  CONSTITUTION  OF  THE  U.    STATES.     [bOOK  III, 

the  nature  and  extent  of  the  appellate  jurisdiction  of 
the  Supreme  Court.  At  present,  it  is  only  necessary 
to  state,  that  it  has  been  solemnly  adjudged,  that  the 
amendment  applies  only  to  original  suits  against  a  state ; 
and  does  not  touch  the  appellate  jurisdiction  of  the 
Supreme  Court  to  re-examine,  on  an  appeal  or  writ  of 
error,  a  judgment  or  decree  rendered  in  any  state 
court,  in  a  suit  brought  originally  by  a  state  against  any 
private  person. 

§  879.  Another  inquiry  suggested  by  the  original 
clause,  as  well  as  by  the  amendment,  is,  when  a  state 
is  properly  to  be  deemed  a  party  to  a  suit,  so  as  to 
avail  itself  of,  or  to  exempt  itself  from,  the  operation 
of  the  jurisdiction  conferred  by  the  constitution.  To 
such  an  inquiry,  the  proper  answer  is,  that  a  state,  in 
the  sense  of  the  constitution,  is  a  party  only,  when  it 
is  on  the  record  as  such ;  and  it  sues,  or  is  sued  in  its 
political  capacity.  It  is  not  sufficient,  that  it  may 
have  an  interest  in  a  suit  between  other  persons,  or 
that  its  rights,  powers,  privileges,  or  duties,  may  come 
therein  incidentally  in  question.  It  must  be  in  terms  a 
plaintiff  or  defendant,  so  that  the  judgment,  or  de- 
cree may  be  binding  upon  it,  as  it  is  in  common  suits 
binding  upon  parties  and  privies.  The  point  arose  in 
an  early  stage  of  the  government,  in  a  suit  between  pri- 
vate persons,  where  one  party  asserted  the  land  in  con- 
troversy to  be  in  Connecticut  and  the  other  in  New- 
York  ;  and  the  court  held,  that  neither  state  could  be 
considered  as  a  party.  It  has  been  again  discussed  in 
some  late  cases;  and  the  doctrine  now  firmly  establish- 
ed is,  that  a  state  is  not  a  party  in  the  sense  of  the  con- 
stitution, unless  it  appears  on  the  record,  as  such,  either 
as  plaintiff  or  defendant.  It  is  not  sufficient,  that  it 
may  have  an  interest  in  the  cause,  or  that  the  parties 


CH.  XXXVIIl.]       JtTDICIARY  —  JURISDICTION.  627 

before  the  court  are  sued  for  acts  done,  as  agents  of 
the  state.  In  short,  the  very  immunity  of  a  state  from 
being  made  a  party,  constitutes,  or  may  constitute,  a 
solid  ground,  why  the  suit  should  be  maintained 
against  other  parties,  who  act  as  its  agents,  or  claim 
under  its  tide ;  though  otherwise,  as  the  principal,  it 
might  be  fit,  that  the  state  should  be  made  a  party 
upon   the   common  principles   of  a  court  of  equity. 

§  880.  The  same  principle  applies  to  cases,  where 
a  state  has  an  interest  in  a  corporation  ;  as  when  it  is 
a  stockholder  in  an  incorporated  bank,  the  corpora- 
tion is  still  suable,  although  the  state,  as  such,  is 
exempted  from  any  action.  The  state  does  not,  by 
becoming  a  corporator,  identify  itself  with  the  corpo- 
ration. The  bank,  in  such  a  case,  is  not  the  state, 
although  the  state  holds  an  interest  in  it.  Nor  will  it 
make  any  difference  in  the  case,  that  the  state  has 
the  sole  interest  in  the  corporation,  if  in  fact  it  creates 
other  persons  corporators.  An  analogous  case  will 
be  found  in  the  authority,  given  by  an  act  of  congress 
to  the  postmaster-general,  to  bring  suits  in  his  official 
capacity.  In  such  suits  the  United  States  are  not 
understood  to  be  a  party,  although  the  suits  solely  re- 
gard their  interests.  The  postmaster-general  does 
not,  in  such  cases,  sue  under  the  clause  giving  juris- 
diction, "  in  controversies,  to  which  the  United  States 
shall  be  a  party ; "  but  under  the  clause  extending  the 
jurisdiction  to  cases  arising  under  the  laws  of  the  Unit- 
ed States. 

^881.  It  may,  then,  be  laid  down,  as  a  rule,  which 
admits  of  no  exception,  that  in  all  cases  under  the  con- 
stitution of  the  United  States,  where  jurisdiction  de- 
pends upon  the  party,  it  is  the  party  named  on  the 
record.     Consequently  the  amendment  above  referred 


628  CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 

to,  which  restrains  the  jurisdiction  granted  by  the  con- 
stitution over  suits  against  states,  is  of  necessity  limited 
to  those  suits,  in  which  a  state  is  a  party  on  the  record. 
The  amendment  has  its  full  effect,  if  the  constitution  is 
construed,  as  it  would  have  been  construed,  had  the 
jurisdiction  never  been  extended  to  suits  brought 
against  a  state  by  the  citizens  of  another  state,  or  by 
aliens. 

§  882.  Next.  "  Controversies  between  citizens  of 
different  states."  Although  the  necessity  of  this  power 
may  not  stand  upon  grounds  quite  as  strong,  as  some 
of  the  preceding,  there  are  high  motives  of  state  policy 
and  public  justice,  by  which  it  can  be  clearly  vindicated. 
There  are  many  cases,  in  which  such  a  power  may  be 
indispensable,  or  in  the  highest  degree  expedient,  to 
carry  into  effect  some  of  the  privileges  and  immunities 
conferred,  and  some  of  the  prohibitions  upon  states  ex- 
pressly declared,  in  the  constitution.  For  example;  it 
is  declared,  that  the  citizens  of  each  state  shall  be  enti- 
tled to  all  the  privileges  and  immunities  of  citizens  of 
the  several  states.  Suppose  an  attempt  is  made  to 
evade,  or  withhold  these  privileges  and  immunities, 
would  it  not  be  right  to  allow  the  party  aggrieved  an 
opportunity  of  claiming  them,  in  a  contest  with  a  citizen 
of  the  state,  before  a  tribunal,  at  once  national  and  im- 
partial ?  Suppose  a  state  should  pass  a  tender  law, 
or  law  impairing  the  obligation  of  private  contracts,  or 
should  in  the  course  of  its  legislation  grant  unconstitu- 
tional preferences  to  its  own  citizens,  is  it  not  clear, 
that  the  jurisdiction,  to  enforce  the  obhgations  of  the 
constitution  in  such  cases,  ought  to  be  confided  to  the 
national  tribunals  ?  These  cases  are  not  purely  imag- 
inary. They  have  actually  occurred ;  and  may  again 
occur,  under  peculiar  circumstances,  in  the  course  of 


CH.  XXXVIII.]       JUDICIARY  —  JURISDICTION.  629 

state  legislation.  What  was  the  fact  under  the  con- 
federation? Each  state  was  obliged  to  acquiesce  in 
the  degree  of  justice,  which  another  state  might  choose 
to  yield  to  its  citizens.  There  was  not  only  danger  of 
animosities  growing  up  from  this  source ;  but,  in  point 
of  fact,  there  did  grow  up  retaliatory  legislation,  to  meet 
such  real  or  imagined  grievances. 

§  883.  Nothing  can  conduce  more  to  general  har- 
mony and  confidence  among  all  the  states,  than  a  con- 
sciousness, that  controversies  are  not  exclusively  to  be 
decided  by  the  state  tribunals ;  but  may,  at  the  elec- 
tion of  the  party,  be  brought  before  the  national  tribu- 
nals. Besides ;  it  cannot  escape  observation,  that  the 
judges  in  different  states  hold  their  offices  by  a  very 
different  tenure.  Some  hold  during  good  behaviour ; 
some  for  a  term  of  years;  some  for  a  single  year;  some 
are  irremovable,  except  upon  impeachment;  and  others 
may  be  removed  upon  address  of  the  legislature.  Under 
such  circumstances  it  cannot  but  be  presumed,  that 
there  may  arise  a  course  of  state  policy,  or  state  legis- 
lation, exceedingly  injurious  to  the  interests  of  the  citi- 
zens of  other  states,  both  as  to  real  and  to  personal  prop- 
erty. It  would  require  an  uncommon  exercise  of  can- 
dour or  credulity  to  affirm,  that  in  cases  of  this  sort  all 
the  state  tribunals  would  be  wholly  without  state  pre- 
judice, or  state  feelings ;  or,  that  they  would  be  as  ear- 
nest in  resisting  the  encroachments  of  state  authority 
upon  the  just  rights,  and  interests  of  the  citizens  of 
other  states,  as  a  tribunal  differently  constituted,  and 
wholly  independent  of  state  authority.  And  if  justice 
should  be  as  fairly,  and  as  firmly  administered  in  the 
former,  as  in  the  latter,  still  the  mischiefs  would  be 
most  serious,  if  the  public  opinion  did  not  indulge  such 
a  behef.     Justice,  in  cases  of  this  sort,  should  riot  only 


630      CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

be  above  all  reproach,  but  above  all  suspicion.  The 
sources  of  state  irritations  and  state  jealousies  are  suffi- 
ciently numerous,  without  leaving  open  one  so  copious 
and  constant,  as  the  belief,  or  the  dread  of  wrong  in 
the  administration  of  state  justice.  Besides  ;  if  the 
public  confidence  should  continue  to  follow  the  state 
tribunals,  (as  in  many  cases  it  doubdess  will,)  the  pro- 
vision will  become  inert  and  harmless;  for,  as  the  party 
will  have  his  election  of  the  forum,  he  will  not  be  in- 
clined to  desert  the  state  courts,  unless  for  some  sound 
reason,  founded  either  in  the  nature  of  his  cause,  or  in 
the  influence  of  state  prejudices.  On  the  other  hand, 
there  can  be  no  real  danger  of  injustice  to  the  other 
side  in  the  decisions  of  the  national  tribunals  ;  because 
the  cause  must  still  be  decided  upon  the  true  principles 
of  the  local  law,  and  not  by  any  foreign  jurisprudence. 
There  is  another  circumstance  of  no  small  importance, 
as  a  matter  of  policy ;  and  that  is,  the  tendency  of  such 
a  power  to  increase  the  confidence  and  credit  between 
the  commercial  and  agricultural  states.  No  man  can 
be  insensible  to  the  value,  in  promoting  credit,  of  the 
belief  of  there  being  a  prompt,  efficient,  and  impartial 
administration  of  justice  in  enforcing  contracts. 

§  884.  The  next  inquiry  growing  out  of  this  part  of 
the  clause  is,  who  are  to  be  deemed  citizens  of  differ- 
ent states  within  the  meaning  of  it.  Are  all  persons 
born  within  a  state  to  be  always  deemed  citizens  of 
that  state,  notwithstanding  any  change  of  domicil ;  or 
does  their  citizenship  change  with  their  change  of  dom- 
icil ?  The  answer  to  this  inquiry  is  equally  plain  and 
satisfactory.  The  constitution  having  declared,  -that 
the  citizens  of  each  state  shall  be  entitled  to  all  privi- 
leges and  immunities  of  citizens  in  the  several  states, 
every  person,  who  is  a  citizen  of  one  state,  and  removes 


CH,  XXXVIII.]       JUDICIARY JURISDICTION.  631 

into  another,  with  the  intention  of  taking  up  his  resi- 
dence and  inhabitancy  there,  becomes,  ipso  facto,  a  citi- 
zen of  the  state,  where  he  resides;  and  he  then 
ceases  to  be  a  citizen  of  the  state,  from  which  he  has 
removed  his  residence.  Of  course,  when  he  gives  up 
his  new  residence  or  domicil,  and  returns  to  his  native, 
or  other  state  residence  or  domicil,  he  re-acquires  the 
character  of  the  latter.  What  circumstances  shall  con- 
stitute such  a  change  of  residence  or  domicil,  is  an  in- 
quiry, more  properly  belonging  to  a  treatise  upon  public 
or  municipal  law,  than  to  commentaries  upon  constitu- 
tional law.  In  general,  however,  it  may  be  said,  that  a 
removal  from  one  state  into  another,  animo  manendi,  or 
with  a  design  of  becoming  an  inhabitant,  constitutes  a 
change  of  domicil,  and  of  course  a  change  of  citizen- 
ship. But  a  person,  who  is  a  native  citizen  of  one 
state,  never  ceases  to  be  a  citizen  thereof,  until  he  has 
acquired  a  new  citizenship  elsewhere.  Residence  in  a 
foreign  country  has  no  operation  upon  his  character,  as 
a  citizen,  although  it  may,  for  purposes  of  trade  and 
commerce,  impress  him  with  the  character  of  the  coun- 
try. To  change  allegiance  is  one  thing;  to  change 
inhabitancy  is  quite  another  thing.  The  right  and  the 
power  are  not  co-extensive  in  each  case.  Every  citi- 
zen of  a  state  is,  ipso  facto,  a  citizen  of  the  United 
States. 

§  885.  And  a  person,  who  is  a  naturalized  citizen  of 
the  United  States,  by  a  like  residence  in  any  state  in 
the  Union,  becomes,  ipso  facto,  a  citizen  of  that  state. 
So  a  citizen  of  a  territory  of  the  Union  by  a  like  resi- 
dence acquires  the  character  of  the  state,  where  he  re- 
sides. But  a  naturalized  citizen  of  the  United  States, 
or  a  citizen  of  a  territory,  is  not  a  citizen  of  a  state, 
entitled  to  sue  in  the  courts  of  the  United  States  in 


632    CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

virtue  of  that  character,  while  he  resides  in  any  such 
territory,  nor  until  he  has  acquired  a  residence  or  dom- 
icil  in  the  particular  state. 

§  886.  A  corporation,  as  such,  is  not  a  citizen  of  a 
state  in  the  sense  of  the  constitution.  But,  if  all  the 
members  of  the  corporation  are  citizens,  their  charac- 
ter will  confer  jurisdiction  ;  for  then  it  is  substantially  a 
suit  by  citizens  suing  in  their  corporate  name.  And  a 
citizen  of  a  state  is  entitled  to  sue,  as  such,  notwith- 
standing he  is  a  trustee  for  others,  or  sues  in  autre  droit, 
as  it  is  technically  called,  that  is,  as  representative  of 
another.  Thus,  a  citizen  may  sue,  who  is  a  trustee  at 
law,  for  the  benefit  of  the  person  entitled  to  the  trust. 
And  an  administrator,  and  an  executor  may  sue  for  the 
benefit  of  the  estate,  which  they  represent ;  for  in  each 
of  these  cases  it  is  their  personal  suit.  But  if  citizens, 
who  are  parties  to  a  suit,  are  merely  nominally  so,  as, 
for  instance,  if  magistrates  are  officially  required  to 
allow  suits  to  be  brought  in  their  names  for  the  use  or 
benefit  of  a  citizen  or  alien,  the  latter  are  deemed  the 
substantial  parties  entitled  to  sue. 

§  887.  Next.  "  Controversies  between  citizens  of 
the  same  state,  claiming  lands  under  grants  of  different 
states."  This  clause  was  not  in  the  first  draft  of  the 
constitution,  but  was  added  without  any  known  objec- 
tion to  its  propriety.  It  is  the  only  instance,  in  which 
the  constitution  directly  contemplates  the  cognizance 
of  disputes  between  citizens  of  the  same  state ;  but 
certainly  not  the  only  one,  in  which  they  may  indirectly 
upon  constitutional  questions  have  the  benefit  of  the 
judicial  power  of  the  Union.  The  Federalist  has  re- 
marked, that  the  reasonableness  of  the  agency  of  the 
national  courts  in  cases,  in  which  the  state  tribunals 
cannot  be  supposed  to  be  impartial,  speaks  for  itself. 


CH.  XXXVIII.]       JUDICIARY JURISDICTION.  633 

No  man  ought  certainly  to  be  a  judge  in  his  own  cause, 
or  in  any  cause,  in  respect  to  which  he  has  the  least 
interest  or  bias.  This  principle  has  no  inconsiderable 
weight  in  designating  the  federal  courts,  as  the  proper 
tribunals  for  the  determination  of  controversies  between 
different  states  and  their  citizens.  And  it  ought  to  have 
the  same  operation  in  regard  to  some  cases  between 
citizens  of  the  same  state.  Claims  to  land  under  grants 
of  different  states,  founded -upon  adverse  pretensions 
of  boundary,  are  of  this  description.  The  courts  of 
neither  of  the  granting  states  could  be  expected  to  be 
unbiassed.  The  laws  may  have  even  prejudged  the 
question ;  and  tied  the  courts  down  to  decisions  in  fa- 
vour of  the  grants  of  the  state,  to  which  they  belonged. 
Where  this  has  not  been  done,  it  would  be  natural, 
that  the  judges,  as  men,  should  feel  a  strong  predilec- 
tion for  the  claims  of  their  own  government.  And,  at 
all  events,  the  providing  of  a  tribunal,  having  no  possible 
interest  on  the  one  side,  more  than  the  other,  would 
have  a  most  salutary  tendency  in  quieting  the  jealousies, 
and  disarming  the  resentments  of  the  state,  whose 
grants  should  be  held  invalid.  This  jurisdiction  attaches 
not  only  to  grants  made  by  different  states,  which  were 
never  united;  but  also  to  grants  made  by  different 
states,  which  were  originally  united  under  one  jurisdic- 
tion, if  made  since  the  separation,  although  the  origin 
of  the  title  may  be  traced  back  to  an  antecedent  pe- 
riod. 

^  888.  Next.  "  Controversies  between  a  state,  or 
the  citizens  thereof,  and  foreign  states,  citizens,  or  sub- 
jects." The  Federalist  has  vindicated  this  provision 
in  the  following  brief,  but  powerful  manner:  "The 
peace  of  the  whole  ought  not  to  be  left  at  the  disposal 
of  a  part.     The  Union  will  undoubtedly  be  answerable 

Abr.  80 


634 


CONSTITUTION    OF    THE    U.    STATES.    [bOOK  III. 


to  foreign  powers  for  the  conduct  of  its  members. 
And  the  responsibility  for  an  injury  ought  ever  to  be 
accompanied  with  the  faculty  of  preventing  it.  As 
the  denial  or  perversion  of  justice  by  the  sentences  of 
courts  is  with  reason  classed  among  the  just  causes  of 
war,  it  will  follow,  that  the  federal  judiciary  ought  to 
have  cognizance  of  all  causes,  in  which  the  citizens  of 
other  countries  are  concerned.  This  is  not  less  essen- 
tial to  the  preservation  of  the  public  faith,  than  to  the 
security  of  the  public  tranquillity.  A  distinction  may 
perhaps  be  imagined  between  cases  arising  upon  trea- 
ties and  the  laws  of  nations,  and  those,  which  may 
stand  merely  on  the  footing  of  the  municipal  law.  The 
former  kind  may  be  supposed  proper  for  the  federal 
jurisdiction  ;  the  latter  for  that  of  the  states.  But  it 
is  at  least  problematical,  whether  an  unjust  sentence 
against  a  foreigner,  where  the  subject  of  controversy 
was  wholly  relative  to  the  lex  loci,  would  not,  if  unre- 
dressed, be  an  aggression  upon  his  sovereign,  as  well 
as  one,  which  violated  the  stipulations  of  a  treaty,  or 
the  general  law  of  nations.  And  a  still  greater  objec- 
tion to  the  distinction  would  result  from  the  immense 
difficulty,  if  not  impossibility,  of  a  practical  discrimin- 
ation between  the  cases  of  one  complexion,  and  those 
of  the  other.  So  great  a  proportion  of  the  controver- 
sies, in  which  foreigners  are  parties,  involve  national 
questions,  that  it  is  by  far  the  most  safe,  and  most  ex- 
pedient, to  refer  all  those,  in  which  they  are  concerned, 
to  the  national  tribunals." 

^  889.  In  addition  to  these  suggestions,  it  may  be 
remarked,  that  it  is  of  great  national  importance  to 
advance  public,  as  well  as  private  credit,  in  our  inter- 
course with  foreign  nations  and  their  subjects.  No- 
thing can  be  more  beneficial  in  this  respect,  than  to 


CH.  XXXVIII.]       JUDICIARY JURISDICXrON.  635 

create  an  impartial  tribunal,  to  which  they  may  have 
resort  upon  all  occasions,  when  it  may  be  necessary 
to  ascertain,  or  enforce  their  rights.  Besides  ;  it  is 
not  wholly  immaterial,  that  the  law  to  be  administered 
in  cases  of  foreigners  is  often  very  distinct  from  the 
mere  municipal  code  of  a  state,  and  dependent  upon 
the  law  merchant,  or  the  more  enlarged  consideration 
of  international  rights  and  duties,  in  a  case  of  conflict 
of  the  foreign  and  domestic  laws.  And  it  may  fairly 
be  presumed,  that  the  national  tribunals  will,  from  the 
nature  of  their  ordinary  functions,  become  better  ac- 
quainted with  the  general  principles,  which  regulate 
subjects  of  this  nature,  than  other  courts,  however  en- 
lightened, which  are  rarely  required  to  discuss  them. 

^  890.  In  regard  to  controversies  between  an 
American  and  a  foreign  state,  it  is  obvious,  that  the 
suit  must,  on  one  side  at  least,  be  wholly  voluntary. 
No  foreign  state  can  be  compelled  to  become  a  party, 
plaintiff  or  defendant,  in  any  of  our  tribunals.  If, 
therefore,  it  chooses  to  consent  to  the  institution  of 
any  suit,  it  is  its  consent  alone,  which  cail  give  effect 
to  the  jurisdiction  of  the  court.  It  is  certainly  desir- 
able to  furnish  some  peaceable  mode  of  appeal  in  cases, 
where  any  controversy  may  exist  between  an  Ameri- 
can and  a  foreign  state,  sufficiently  important  to  re- 
quire the  grievance  to  be  redressed  by  any  other  mode, 
than  through  the  instrumentality  of  negotiations. 

^  891.  The  inquiry  may  here  be  made,  who  are 
to  be  deemed  aliens  entitled  to  sue  in  the  courts  of 
the  United  States.  The  general  answer  is,  any  per- 
son, who  is  not  a  citizen  of  the  United  States.  A 
foreigner,  who  is  naturalized,  is  no  longer  entitled  to 
the  character  of  an  alien.  And  when  an  alien  is  the 
substantial  party,   it  matters  not,  whether  he    is    a 


636  CONSTITUTION    OF    THE    U.    STATES.     [BOOK  III. 

suitor  in  his  own  right ;  or  whether  he  acts,  as  a  trus- 
tee, or  personal  representative  ;  or  whether  he  is  com- 
pellable by  the  local  law  to  sue  through  some  official 
organ.  A  foreign  corporation,  established  in  a  foreign 
country,  all  of  whose  members  are  aliens,  is  entitled 
to  sue  in  the  same  manner,  that  an  alien  may  person- 
ally sue  in  the  courts  of  the  Union.  It  is  not  sufficient 
to  vest  the  jurisdiction,  that  an  alien  is  a  party  to  the 
suit,  unless  the  other  party  be  a  citizen.  British  sub- 
jects, born  before  the  American  revolution,  are  to  be 
deemed  aliens  ;  and  may  sue  American  citizens,  born 
before  the  revolution,  as  well  as  those  born  since  that 
period.  The  revolution  severed  the  ties  of  allegiance  ; 
and  made  the  inhabitants  of  each  country  aliens  to 
each  other.  In  relation  to  aliens,  however,  it  should 
be  stated,  that  they  have  a  right  to  sue  only,  while 
peace  exists  between  their  country  and  our  own.  For 
if  a  war  break  out,  and  they  thereby  become  alien 
enemies,  their  right  to  sue  is  suspended,  until  the  re- 
turn of  peace. 

§  892.  We  have  now  finished  our  review  of  the 
classes  of  cases,  to  which  the  judicial  power  of  the 
United  States  extends.  The  next  inquiry  naturally 
presented  is,  in  what  mode  it  is  to  be  exercised,  and 
in  what  courts  it  is  to  be  vested.  The  succeeding 
clause  of  the  constitution  answers  this  inquiry.  It  is 
in  the  following  words.  "  In  all  cases  affecting  am- 
"  bassadors,  other  public  ministers,  and  consuls,  and 
"  those,  in  which  a  state  shall  be  a  party,  the  Supreme 
"  Court  shall  have  original  jurisdiction.  In  all  the 
"  other  cases  before  mentioned,  the  Supreme  Court 
"  shall  have  appellate  jmisdiction,  both  as  to  law  and 
*'  fact,  with  such  exceptions  and  under  such  regula- 
"  tions,  as  the  congress  shall  make." 


CH.  XXXVIII.]       JUDICIARY JURISDICTION.  637 

^  893.  The  first  remark  arising  out  of  this  clause 
is,  that,  as  the  judicial  power  of  the  United  States  ex- 
tends to  all  the  cases  enumerated  in  the  constitution, 
it  may  extend  to  all  such  cases  in  any  form,  in  which 
judicial  power  may  be  exercised.  It  may,  therefore, 
extend  to  them  in  the  shape  of  original,  or  appellate 
jurisdiction,  or  both ;  for  there  is  nothing  in  the 
nature  of  the  cases,  which  binds  to  the  exercise  of 
the  one  in  preference  to  the  other.  But  it  is  clear, 
from  the  language  of  the  constitution,  that,  in  one 
form  or  the  other,  it  is  absolutely  obligatory  upon 
congress,  to  vest  all  the  jurisdiction  in  the  national 
courts,  in  that  class  of  cases  at  least,  where  it  has 
declared,  that  it  shall  extend  to  "  all  casesJ^ 

^  894.  In  the  next  place,  the  jurisdiction,  which 
is  by  the  constitution  to  be  exercised  by  the  Supreme 
Court  in  an  original  form,  is  very  limited,  and  extends 
only  to  cases  affecting  ambassadors,  and  other  public 
ministers,  and  consuls,  and  cases,  where  a  state  is  a 
party.  And  congress  cannot  constitutionally  confer 
on  it  any  other,  or  further  original  jurisdiction.  This 
is  one  of  the  appropriate  illustrations  of  the  rule,  that 
the  affirmation  of  a  power  in  particular  cases,  excludes 
it  in  all  others.  The  clause  itself  would  otherwise  be 
wholly  inoperative  and  nugatory.  If  it  had  been  in- 
tended to  leave  it  to  the  discretion  of  congress,  to  ap- 
portion the  judicial  power  between  the  supreme  and 
inferior  courts,  according  to  the  will  of  that  body,  it 
would  have  been  useless  to  have  proceeded  further, 
than  to  define  the  judicial  power,  and  the  tribunals, 
in  w^hich  it  should  be  vested.  Affirmative  words 
often,  in  their  operation,  imply  a  negative  of  other 
objects,  than  those  affirmed  ;  and  in  this  case  a  nega- 
tive, or  exclusive  sense,  must  be  given  to  the  words. 


638     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

or  they  have  no  operation  at  all.  If  the  solicitude  of 
the  convention,  respecting  our  peace  w^ith  foreign 
powers,  might  induce  a  provision  to  be  made,  that  the 
Supreme  Court  should  have  original  jurisdiction  in 
cases,  which  might  be  supposed  to  affect  them  ;  yet 
the  clause  would  have  proceeded  no  further,  than  to 
provide  for  such  cases,  unless  some  further  restriction 
upon  the  powers  of  congress  had  been  intended.  The 
direction,  that  the  Supreme  Court  shall  have  appellate 
jurisdiction  in  all  cases,  with  such  exceptions,  as  con- 
gress shall  make,  will  be  no  restriction,  unless  the  words 
are  to  be  deemed  exclusive  of  original  jurisdiction. 
And  accordingly,  the  doctrine  is  firmly  established, 
that  the  Supreme  Court  cannot  constitutionally  exer- 
cise any  original  jurisdiction,  except  in  the  enumerated 
cases.  If  congress  should  confer  it,  it  would  be  a 
mere  nullity. 

^  895.  But  although  the  Supreme  Court  cannot 
exercise  original  jurisdiction  in  any  cases,  except  those 
specially  enumerated,  it  is  certainly  competent  for 
congress  to  vest  in  any  inferior  courts  of  the  United 
States  original  jurisdiction  of  all  other  cases,  not  thus 
specially  assigned  to  the  Supreme  Court ;  for  there  is 
nothing  in  the  constitution,  which  excludes  such  in- 
ferior courts  from  the  exercise  of  such  original  juris- 
diction. Original  jurisdiction,  so  far  as  the  constitu- 
tion gives  a  rule,  is  co-extensive  with  the  judicial 
power  ;  and  except,  so  far  as  the  constitution  has 
made  any  distribution  of  it  among  the  courts  of  the 
United  States,  it  remains  to  be  exercised  in  an  original, 
or  appellate  form,  or  both,  as  congress  may  in  their 
wisdom  deem  fit.  Now,  the  constitution  has  made 
no  distribution,  except  of  the  original  and  appellate 
jurisdiction  of  the  Supreme  Court.     It  has  no  where 


CH.  XXXVIII.]       JUDICIARY JURISDICTION.  639 

insinuated,  that  the  inferior  tribunals  shall  have  no 
original  jurisdiction.  It  has  no  where  affirmed,  that 
the  J  shall  have  appellate  jurisdiction.  Both  are  left 
unrestricted  and  undefined.  Of  course,  as  the  judicial 
power  is  to  be  vested  in  the  supreme  and  inferior 
courts  of  the  Union,  both  are  under  the  entire  control 
and  regulation  of  congress. 

^  896.  Another  question  of  a  very  different  nature 
is,  whether  the  Supreme  Court  can  exercise  appellate 
jurisdiction  in  the  class  of  cases,  of  which  original 
jurisdiction  is  delegated  to  it  by  the  constitution  ;  in 
other  words,  whether  the  original  jurisdiction  excludes 
the  appellate  ;  and  so,  e  converso,  the  latter  implies  a 
negative  of  the  former.  It  has  been  said,  that  the 
very  distinction  taken  in  the  constitution,  between 
original  and  appellate  jurisdiction,  presupposes,  that 
where  the  one  can  be  exercised,  the  other  cannot. 
For  example,  since  the  original  jurisdiction  extends 
to  cases,  where  a  state  is  a  party,  this  is  the  proper 
form,  in  which  such  cases  are  to  be  brought  before 
the  Supreme  Court ;  and,  therefore,  a  case,  where  a 
state  is  a  party,  cannot  be  brought  before  the  court, 
in  the  exercise  of  its  appellate  jurisdiction  ;  for  the 
affirmative  here,  as  well  as  in  the  cases  of  original 
jurisdiction,  includes  a  negative  of  the  cases  not 
enumerated. 

^  897.  If  the  correctness  of  this  reasoning  were 
admitted,  it  would  establish  no  more,  than  that  the 
Supreme  Court  could  not  exercise  appellate  jurisdic- 
tion in  cases,  where  a  state  is  a  party.  But  it  would 
by  no  means  establish  the  doctrine,  that  the  judicial 
power  of  the  United  States  did  not  extend,  in  an  ap- 
pellate form,  to  such  cases.  The  exercise  of  appellate 
jurisdiction  is  far  from  being  limited,  by  the   terms   of 


640     CONSTITUTION  OF  THE  U.  STATES.  [BOOK  III. 

the  constitution,  to  the  Supreme  Court.  There  can 
be  no  doubt,  that  congress  may  create  a  succession  of 
inferior  tribunals,  in  each  of  which  it  may  vest  appel- 
late, as  well  as  original  jurisdiction.  This  results 
from  the  very  nature  of  the  delegation  of  the  judicial 
power  in  the  constitution.  It  is  delegated  in  the  most 
general  terms  ;  and  may,  therefore,  be  exercised  under 
the  authority  of  congress,  under  every  variety  of  form 
of  original  and  appellate  jurisdiction.  There  is  nothing 
in  the  instrument,  which  restrains,  or  limits  the  power ; 
and  it  must,  consequently,  subsist  in  the  utmost  lati- 
tude, of  which  it  is  in  its  nature  susceptible.  The 
result  then  would  be,  that,  if  the  appellate  jurisdiction 
over  cases,  to  which  a  state  is  a  party,  could  not,  ac- 
cording to  the  terms  of  the  constitution,  be  exercised 
by  the  Supreme  Court,  it  might  be  exercised  exclu- 
sively by  an  inferior  tribunal.  The  soundness  of  any 
reasoning,  which  would  lead  us  to  such  a  conclusion, 
may  well  be  questioned. 

^  898.  But  the  reasoning  itself  is  not  well  founded. 
It  proceeds  upon  the  ground,  that,  because  the  charac- 
ter of  the  party  alone,  in  some  instances,  entitles  the 
Supreme  Court  to  maintain  original  jurisdiction,  with- 
out any  reference  to  the  nature  of  the  case,  therefore, 
the  character  of  the  case^  which  in  other  instances  is 
made  the  very  foundation  of  appellate  jurisdiction,  can- 
not attach.  Now,  that  is  the  very  point  of  controversy. 
It  is  not  only  not  admitted,  but  it  is  solemnly  denied. 
The  argument  might  just  as  well,  and  with  quite  as 
much  force,  be  pressed  in  the  opposite  direction.  It 
might  be  said,  that  the  appellate  jurisdiction  is  ex- 
pressly extended  by  the  constitution  to  all  cases  in 
law  and  equity,  arising  under  the  constitution,  laws, 
and  treaties  of  the   United   States,  and,  therefore,  in 


CH.  XXXVIII.]       JUDICIARY  —  JURISDICTION.  641 

no  such  cases  could  the  Supreme  Court  exercise  orig- 
inal jurisdiction,  even  though  a  state  were  a  party. 

^  899.  The  next  inquiry  is,  whether  the  eleventh 
amendment  to  the  constitution  has  effected  any  change 
of  the  jurisdiction,  thus  confided  to  the  judicial  power 
of  the  United  States.  The  words  of  the  amendment 
are,  "  the  judicial  power  of  the  United  States  shall 
"  not  be  construed  to  extend  to  any  suit  in  law  or 
"  equity,  commenced  or  prosecuted  against  one  of  the 
"  states  by  citizens  of  another  state,  or  by  citizens  or 
"  subjects  of  any  foreign  state."  It  is  a  part  of  our 
history,  that,  at  the  adoption  of  the  constitution,  all 
the  states  were  greatly  indebted  ;  and  the  apprehen- 
sion, that  these  debts  might  be  prosecuted  in  the 
federal  courts,  formed  a  very  serious  objection  to  that 
instrument.  Suits  were  instituted  ;  and  the  Supreme 
Court  maintained  its  jurisdiction.  The  alarm  was 
general ;  and,  to  quiet  the  apprehensions,  that  were 
so  extensively  entertained,  this  amendment  was  pro- 
posed in  Congress,  and  adopted  by  the  state  legisla- 
tures. That  its  motive  was  not  to  maintain  the  sove- 
reignty of  a  state  from  the  degradation,  supposed  to 
attend  a  compulsory  appearance  before  the  tribunal  of 
the  nation,  may  be  inferred  from  the  terms  of  the 
amendment.  It  does  not  comprehend  controversies 
between  two  or  more  states,  or  between  a  state  and 
a  foreign  state.  The  jurisdiction  of  the  court  still 
extends  to  these  cases  ;  and  in  these  a  state  may  still 
be  sued.  We  must  ascribe  the  amendment,  then,  to 
some  other  cause,  than  the  dignity  of  a  state.  There 
is  no  difficulty  in  finding  this  cause.  Those,  who 
were  inhibited  from  commencing  a  suit  against  a 
state,  or  from  prosecuting  one,  which  might  be  com- 
menced before  the  adoption  of  the  amendment,  were 

Ahr.  81 


642         CONSTITUTION    OF    THE    U.    STATES.       [BOOK  IIT. 

persons,  who  might  probably  be  its  creditors.  There 
was  not  much  reason  to  fear,  that  foreign  or  sister 
states  would  be  creditors  to  any  considerable  amount ; 
and  there  was  reason  to  retain  the  jurisdiction  of  the 
court  in  those  cases,  because  it  might  be  essential  to 
the  preservation  of  peace.  The  amendment,  therefore, 
extended  to  suits  commenced,  or  prosecuted  by  indi- 
viduals, but  not  to  those  brought  by  states. 

^  900.  The  first  impression  made  on  the  mind  by 
this  amendment  is,  that  it  was  intended  for  those 
cases,  and  for  those  only,  in  which  some  demand 
against  a  state  is  made  by  an  individual  in  the  courts 
of  the  Union.  If  we  consider  the  cause,  to  which  it 
is  to  be  traced,  we  are  conducted  to  the  same  con- 
clusion. A  general  interest  might  well  be  felt  in 
leaving  to  a  state  the  full  power  of  consulting  its  con- 
venience in  the  adjustment  of  its  debts,  or  of  other 
claims  upon  it.  But  no  interest  could  be  felt  in  so 
changing  the  relations  between  the  whole  and  its 
parts,  as  to  strip  the  government  of  the  means  of  pro- 
tecting, by  the  instrumentality  of  its  courts,  the  con- 
stitution and  laws  from  active  violation. 

^901.  This  amendment,  then,  was  designed  to 
prevent  any  suit  being  originally  commenced  hy  any 
private  person  against  a  state  ;  but  it  was  not  designed 
to  control  or  interfere  with  the  appellate  jurisdiction 
of  the  Supreme  Court  in  cases,  to  which  that  appellate 
jurisdiction  extended  before  the  amendment.  A  case, 
therefore,  originally  commenced  hy  a  state  against  a 
private  person  in  any  other  court,  which  involved  any 
question  arising  under  the  constitution,  laws  or  treaties 
of  the  United  States,  might  still  be  revised  by  the 
Supreme  Court  upon  an  appeal  or  writ  of  Error,  as  the 
case  might  require. 


CH.  XXXVIII.]        JUDICIARY  —  JURISDICTION.  643 

^  902.  Another  inquiry,  touching  the  appellate 
jurisdiction  of  the  Supreme  Court,  of  a  still  more  gen- 
eral character,  is,  whether  it  extends  only  to  the  in- 
ferior courts  of  the  Union,  constituted  by  congress,  or 
reaches  to  cases  decided  in  the  state  courts.  This 
question  has  been  made  on  several  occasions  ;  and 
has  been  most  deliberately  and  solemnly  decided  by  the 
Supreme  Court  that  it  reaches  the  latter  cases. 

^  903.  We  have  already  seen,  that  appellate  juris- 
diction is  given  by  the  constitution  to  the  Supreme 
Court  in  all  cases,  w^here  it  has  not  original  jurisdic- 
tion ;  subject,  however,  to  such  exceptions  and  regu- 
lations, as  congress  may  prescribe.  It  is,  therefore, 
capable  of  embracing  every  case  enumerated  in  the 
constitution,  which  is  not  exclusively  to  be  decided  by 
way  of  original  jurisdiction.  But  the  exercise  of 
appellate  jurisdiction  is  far  from  being  limited  by  the 
terms  of  the  constitution  to  the  Supreme  Court. 
There  can  be  no  doubt,  that  congress  may  create  a 
succession  of  inferior  tribunals,  in  each  of  which  it 
may  vest  appellate,  as  well  as  original  jurisdiction. 
The  judicial  power  is  delegated  by  the  constitution  in 
the  most  general  terms,  and  may,  therefore,  be  exer- 
cised by  congress,  under  every  variety  of  form  of  ap- 
pellate, or  original  jurisdiction.  And  as  there  is  no- 
thing in  the  constitution,  which  restrains,  or  limits 
this  power,  it  must,  therefore,  in  all  these  cases,  sub- 
sist in  the  utmost  latitude,  of  which,  in  its  own  nature, 
it  is  susceptible. 

^  904.  If  the  constitution  meant  to  limit  the  ap- 
pellate jurisdiction  to  cases  pending  in  the  courts  of 
the  United  States,  it  would  necessarily  follow,  that 
the  jurisdiction  of  these  courts  would,  in  all  the  cases 
enumerated  in  the  constitution,  be  exclusive  of  state 


644     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

tribunals.  How,  otherwise,  could  the  jurisdiction 
extend  to  all  cases,  arising  under  the  constitution, 
laws,  and  treaties  of  the  United  States,  or,  to  all  cases 
of  admiralty  and  maritime  jurisdiction  ?  If  some  of 
these  cases  might  be  entertained  by  state  tribunals, 
and  no  appellate  jurisdiction,  as  to  them,  should  exist, 
then  the  appellate  power  would  not  extend  to  all,  but, 
to  some,  cases.  If  state  tribunals  might  exercise 
concurrent  jurisdiction  over  all,  or  some  of  the  other 
classes  of  cases  in  the  constitution,  without  control, 
then  the  appellate  jurisdiction  of  the  United  States 
might,  as  to  such  cases,  have  no  real  existence,  con- 
trary to  the  manifest  intent  of  the  constitution.  Un- 
der such  circumstances,  to.give  effect  to  the  judicial 
power,  it  must  be  construed  to  be  exclusive  ;  and 
this,  not  only  w^hen  the  casus  feeder  is  should  arise  di- 
rectly ;  but  when  it  should  arise  incidentally  in  cases 
pending  in  state  courts.  This  construction  would 
abridge  the  jurisdiction  of  such  courts  far  more,  than 
has  been  ever  contemplated  in  any  act  of  congress. 

^  905.  But  it  is  plain,  that  the  framers  of  the  con- 
stitution did  contemplate,  that  cases  within  the  judicial 
cognizance  of  the  United  States,  not  only  might,  but 
would  arise  in  the  state  courts  in  the  exercise  of  their 
ordinary  jurisdiction.  With  this  view,  the  sixth  article 
declares,  that  '  this  constitution,  and  the  laws  of  the 
United  States,  w^hich  shall  be  made  in  pursuance 
thereof,  and  all  treaties  made,  or  which  shall  be  made, 
under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land,  and  the  judges,  in  every 
state,  shall  be  bound  thereby,  any  thing,  in  the  con- 
stitution or  laws  of  any  state,  to  the  contrary  notwith- 
standing.' It  is  obvious,  that  this  obligation  is  im- 
perative upon  the  state  judges  in  their  official,  and 


CH.  XXXVIII.]       JUDICIARY JURISDICTION.  645 

not  merely  in  their  private  capacities.  From  the  very 
nature  of  their  judicial  duties,  they  vs^ould  be  called 
upon  to  pronounce  the  law,  applicable  to  the  case  in 
judgment.  They  were  not  to  decide,  merely  accord- 
ing to  the  laws,  or  constitution  of  the  state,  but  ac- 
cording to  the  constitution,  laws,  and  treaties  of  the 
United  States,  — '  the  supreme  law  of  the  land.' 

^  906.  A  moment's  consideration  will  show  us 
the  necessity  and  propriety  of  this  provision  in  cases, 
where  the  jurisdiction  of  the  state  courts  is  unques- 
tionable. Suppose  a  contract,  for  the  payment  of 
money,  is  made  between  citizens  of  the  same  state, 
and  performance  thereof  is  sought  in  the  courts  of 
that  state  ;  no  person  can  doubt,  that  the  jurisdiction 
completely  and  exclusively  attaches,  in  the  first  in- 
stance, to  such  courts.  Suppose  at  the  trial,  the  de- 
fendant sets  up,  in  his  defence,  a  tender  under  a  state 
law,  making  paper  money  a  good  tender,  or  a  state 
law,  impairing  the  obligation  of  such  contract,  which 
law,  if  binding,  would  defeat  the  suit.  The  constitu- 
tion of  the  United  States  has  declared,  that  no  state 
shall  make  any  thing  but  gold  or  silver  coin  a  tender 
in  payment  of  debts,  or  pass  a  law  impairing  the  obli- 
gation of  contracts.  If  congress  shall  not  have  passed 
a  law,  providing  for  the  removal  of  such  a  suit  to  the 
courts  of  the  United  States,  must  not  the  state  court 
proceed  to  hear,  and  determine  it  ?  Can  a  mere  plea 
in  defence  be,  of  itself,  a  bar  to  further  proceedings, 
so  as  to  prohibit  an  inquiry  into  its  truth,  or  legal 
propriety,  when  no  other  tribunal  exists,  to  whom 
judicial  cognizance  of  such  cases  is  confided  ?  Sup- 
pose an  indictment  for  a  crime  in  a  state  court,  and 
the  defendant  should  allege  in  his  defence,  that  the 
crime  was  created  by  an  ex  post  facto  act  of  the  state, 


646 


CONSTITUTION    OF    THE    U.    STATES.    [bOOK  III- 


must  not  the  state  court,  in  the  exercise  of  a  jurisdic- 
tion, which  has  already  rightfully  attached,  have  a 
right  to  pronounce  on  the  validity,  and  sufficiency  of 
the  defence  ?  It  would  be  extremely  difficult,  upon 
any  legal  principles,  to  give  a  negative  answer  to  these 
inquiries.  Innumerable  instances  of  the  same  sort 
might  be  stated,  in  illustration  of  the  position  ;  and 
unless  the  state  courts  could  sustain  jurisdiction  in 
such  cases,  this  clause  of  the  sixth  article  would  be 
without  meaning  or  effect ;  and  public  mischiefs,  of  a 
most  enormous  magnitude,  would  inevitably  ensue. 

§  907.  It  must,  therefore,  be  conceded,  that  the 
constitution,  not  only  contemplated,  but  meant  to 
provide  for  cases  within  the  scope  of  the  judicial 
power  of  the  United  States,  which  might  yet  depend 
before  state  tribunals.  It  was  foreseen,  that,  in  the 
exercise  of  their  ordinary  jurisdiction,  state  courts 
would,  incidentally,  take  cognizance  of  cases  arising 
under  the  constitution,  the  laws,  and  treaties  of  the 
United  States.  Yet  to  all  these  cases  the  judicial 
power,  by  the  very  terms  of  the  constitution,  is  to 
extend.  It  cannot  extend  by  original  jurisdiction,  if 
that  has  already  rightfully  and  exclusively  attached  in 
the  state  courts,  which  (as  has  been  already  shown) 
may  occur  ;  it  must,  therefore,  extend  by  appellate 
jurisdiction,  or  not  at  all.  It  would  seem  to  follow, 
that  the  appellate  power  of  the  United  States  must, 
in  such  cases,  extend  to  state  tribunals  ;  and,  if  in 
such  cases,  there  is  no  reason,  why  it  should  not 
equally  attach  upon  all  others  within  the  purview  of 
the  constitution. 

^  908.  It  is  manifest,  that  the  constitution  has  pro- 
ceeded upon  a  theory  of  its  own,  and  given,  and  with- 
held, powers  according  to  the  judgment  of  the  American 


CH.  XXXVIII.]       JUDICIARY JURISDICTION.  647 

people,  by  whom  it  was  adopted.  We  can  only  con- 
strue its  powers,  and  cannot  inquire  into  the  policy, 
or  principles,  which  induced  the  grant  of  them.  The 
constitution  has  presumed  (whether  rightly  or  wrongly, 
we  do  not  inquire)  that  state  attachments,  state  pre- 
judices, state  jealousies,  and  state  interests,  might 
sometimes  obstruct,  or  control,  or  be  supposed  to  ob- 
struct, or  control,  the  regular  administration  of  justice. 
Hence,  in  controversies  between  states  ;  between  citi- 
zens of  different  states  ;  between  citizens,  claiming 
grants  under  different  states  ;  between  a  state  and  its 
citizens,  or  foreigners  ;  and  between  citizens  and  for- 
eigners ;  it  enables  the  parties,  under  the  authority  of 
congress,  to  have  the  controversies  heard,  tried,  and 
determined  before  the  national  tribunals.  No  other 
reason,  than  that,  which  has  been  stated,  can  be  as- 
signed, why  some,  at  least,  of  these  cases  should  not 
have  been  left  to  the  cognizance  of  the  state  courts. 
In  respect  to  the  other  enumerated  cases ;  cases 
arising  under  the  constitution,  laws,  and  treaties  of 
the  United  States  ;  cases  affecting  ambassadors  and 
other  public  ministers ;  and  cases  of  admiralty  and 
maritime  jurisdiction  ;  reasons  of  a  higher  and  more 
extensive  nature,  touching  the  safety,  peace,  and  sove- 
reignty of  the  nation,  might  w^ell  justify  a  grant  of 
exclusive  jurisdiction. 

^  909.  This  is  not  all.  A  motive  of  another  kind, 
perfectly  compatible  with  the  most  sincere  respect  for 
state  tribunals,  might  induce  the  grant  of  appellate 
power  over  their  decisions.  That  motive  is  the  im- 
portance, and  even  necessity,  of  uniformity  of  decis- 
ions throughout  the  whole  United  States  upon  all  sub- 
jects within  the  purview  of  the  constitution.  Judges 
of  equal  learning  and  integrity,  in  different  states? 


648     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

might  differently  interpret  a  statute,  or  a  treaty  of  the 
United  States,  or  even  the  constitution  itself.  If  there 
were  no  revising  authority  to  control  these  jarring  and 
discordant  judgments,  and  harmonise  them  into  uni- 
formity, the  laws,  the  treaties,  and  the  constitution  of 
the  United  States,  would  be  different  in  different 
states  ;  and  might,  perhaps,  never  have  precisely  the 
same  construction,  obligation,  or  efficacy,  in  any  two 
states.  The  public  mischiefs,  which  would  attend 
such  a  state  of  things,  would  be  truly  deplorable  ;  and 
it  cannot  be  believed,  that  they  could  have  escaped 
the  enlightened  convention,  which  formed  the  consti- 
tution. What,  indeed,  might  then  have  been  only 
prophecy,  has  now  become  fact ;  and  the  appellate 
jurisdiction  must  continue  to  be  the  only  adequate 
remedy  for  such  evils. 

^910.  There  is  an  additional  consideration,  which 
is  entitled  to  great  weight.  The  constitution  of  the 
United  States  was  designed  for  the  common  and  equal 
benefit  of  all  the  people  of  the  United  States.  The 
judicial  power  was  granted  for  the  same  benign  and 
salutary  purposes.  It  was  not  to  be  exercised 
exclusively  for  the  benefit  of  parties,  who  might  be 
plaintiffs,  and  would  elect  the  national  forum  ;  but 
also  for  the  protection  of  defendants,  who  might  be 
entitled  to  try  their  rights,  or  assert  their  privileges, 
before  the  same  forum.  Yet,  if  the  appellate  jurisdic- 
tion does  not  extend  to  such  cases,  it  will  follow,  that, 
as  the  plaintiff  may  always  elect  the  state  courts,  the 
defendant  may  be  deprived  of  all  the  security,  which 
the  constitution  intended  in  aid  of  his  rights.  Such 
a  state  of  things  can,  in  no  respect,  be  considered,  as 
giving  equal  rights. 

^911.  Strong  as  this  conclusion  stands  upon  the 


CH.  XXXVIII.]       JUDICIARY JURISDICTION.  649 

general  language  of  the  constitution,  it  may  still  derive 
support  from  other  sources.  It  is  an  historical  fact, 
that  this  exposition  of  the  constitution,  extending  its 
appellate  power  to  state  courts,  was,  previous  to  its 
adoption,  uniformly  and  publicly  avowed  by  its  friends, 
and  admitted  by  its  enemies,  as  the  basis  of  their  re- 
spective reasonings,  both  in  and  out  of  the  state  con- 
ventions. It  is  an  historical  fact,  that,  at  the  time, 
when  the  judiciary  act  was  submitted  to  the  delibera- 
tions of  the  first  congress,  composed,  as  it  was,  not 
only  of  men  of  great  learning  and  ability,  but  of  men, 
who  had  acted  a  principal  part  in  framing,  supporting, 
or  opposing  that  constitution,  the  same  exposition  was 
explicitly  declared,  and  admitted  by  the  friends,  and 
by  the  opponents  of  that  system.  It  is  an  historical 
fact,  that  the  Supreme  Court  of  the  United  States 
have,  from  time  to  time,  sustained  this  appellate  juris- 
diction in  a  great  variety  of  cases,  brought  from  the 
tribunals  of  many  of  the  most  important  states  in  the 
Union  ;  and  that  no  state  tribunal  has  ever  breathed 
a  judicial  doubt  on  the  subject,  or  declined  to  obey 
the  mandate  of  the  Supreme  Court,  until  a  late  oc- 
casion. This  weight  of  contemporaneous  exposition 
by  all  parties,  this  acquiescence  of  enlightened  state 
courts,  and  these  judicial  decisions  of  the  Supreme 
Court,  through  so  long  a  period,  places  the  doctrine 
upon  a  foundation  of  authority,  which  cannot  be 
shaken,  without  delivering  over  the  subject  to  per- 
petual, and  irremediable  doubts. 

§  912.  It  would  be  difficult,  and  perhaps  not  de- 
sirable, to  lay  down  any  general  rules  in  relation  to 
the  cases,  in  which  the  judicial  power  of  the  courts  of 
the  United  States  is  exclusive  of  the  state  courts,  or 
in  which  it  may  be  made  so  by  congress,  until  they 

Abr.  82 


650  CONSTITUTION    OF   THE    U.    STATES.    [BOOK  III. 

shall  be  settled  by  some  positive  adjudication  of  the 
Supreme  Court.  That  there  are  some  cases,  in  which 
that  power  is  exclusive,  cannot  well  be  doubted  ;  that 
there  are  others,  in  which  it  may  be  made  so  by  con- 
gress, admits  of  as  little  doubt ;  and  that  in  other 
cases  it  is  concurrent  in  the  state  courts,  at  least  until 
congress  shall  have  passed  some  act  excluding  the 
concurrent  jurisdiction,  will  scarcely  be  denied.  It 
seems  to  be  admitted,  that  the  jurisdiction  of  the 
courts  of  the  United  States  is,  or  at  least  may  be, 
made  exclusive  in  all  cases  arising  under  the  constitu- 
tion, laws,  and  treaties  of  the  United  States  ;  in  all 
cases  affecting  ambassadors,  other  public  ministers 
and  consuls  ;  in  all  cases  (in  their  character  exclusive) 
of  admiralty  and  maritime  jurisdiction  ;  in  controver- 
sies, to  which  the  United  States  shall  be  a  party  ;  in 
controversies  between  two  or  more  states  ;  in  contro- 
versies between  a  state  and  citizens  of  another  state  ; 
and  in  controversies  between  a  state  and  foreign  states, 
citizens,  or  subjects.  And  it  is  only  in  those  cases, 
where,  previous  to  the  constitution,  state  tribunals 
possessed  jurisdiction,  independent  of  national  author- 
ity, that  they  can  now  constitutionally  exercise  a  con- 
current jurisdiction. 

^913.  In  the  exercise  of  the  jurisdiction  confided 
respectively  to  the  state  courts,  and  to  those  courts  of 
the  United  States,  (where  the  latter  have  not  appellate 
jurisdiction,)  it  is  plain,  that  neither  can  have  any 
right  to  interfere  with,  or  control,  the  operations  of 
the  other.  It  has  accordingly  been  settled,  that  no 
state  court  can  issue  an  injunction  upon  any  judgment 
in  a  court  of  the  United  States  ;  the  latter  having  an 
exclusive  authority  over  its  own  judgments  and  pro- 
ceedings.    Nor  can  any  state  court,  or  any  state  leg- 


CH.  XXXVIII.]       JUDICIARY JURISDICTION.  651 

islature,  annul  the  judgments  of  the  courts  of  the 
United  States,  or  destroy  the  rights  acquired  under 
theifi ;  nor  in  any  manner  deprive  the  Supreme  Court 
of  its  appellate  jurisdiction  ;  nor  in  any  manner  inter- 
fere with,  or  control  the  process  (whether  mesne  or 
final)  of  the  courts  of  the  United  States  ;  nor  pre- 
scribe the  rules  or  forms  of  proceeding,  nor  effect  of 
process,  in  the  courts  of  the  United  States  ;  nor  issue 
a  mandamus  to  an  officer  of  the  United  States,  to 
compel  him  to  perform  duties,  devolved  on  him  by  the 
laws  of  the  United  States.  And  although  writs  of 
habeas  corpus  have  been  issued  by  state  judges,  and 
state  courts,  in  cases,  where  the  party  has  been  in 
custody  under  the  authority  of  process  of  the  courts 
of  the  United  States,  there  has  been  considerable 
diversity  of  opinion,  whether  such  an  exercise  of  au- 
thority is  constitutional ;  and  it  yet  remains  to  be 
decided,  whether  it  can  be  maintained. 

^914.  On  the  other  hand  the  national  courts  have 
no  authority  (in  cases  not  within  the  appellate  juris- 
diction of  the  United  States)  to  issue  injunctions  to 
judgments  in  the  state  courts  ;  or  in  any  other  manner 
to  interfere  with  their  jurisdiction  or  proceedings. 

§  915.  Having  disposed  of  these  points,  we  may 
again  recur  to  the  language  of  the  constitution  for  the 
purpose  of  some  farther  illustrations.  The  language 
is,  that  "the  Supreme  ,,  Court  shall  have  appellate 
"jurisdiction,  both  as  to  law  and  fact,  with  such  ex- 
"  ceptions,  and  under  such  regulations,  as  the  congress 
"  shall  make." 

^916.  In  the  first  place,  it  may  not  be  without 
use  to  ascertain,  what  is  here  meant  by  appellate 
jurisdiction  ;  and  what  is  the  mode,  in  which  it  may 
be   exercised.       The  essential  criterion  of  appellate 


652  CONSTITUTION    OF    THE    U.    STATES.    [BOOK  III. 

jurisdiction  is,  that  it  revises  and  corrects  the  pro- 
ceedings in  a  cause  already  instituted,  and  does  not 
create  that  cause.  In  reference  to  judicial  tribunals, 
an  appellate  jurisdiction,  therefore,  necessarily  implies, 
that  the  subject  matter  has  been  already  instituted  in, 
and  acted  upon,  by  some  other  court,  whose  judgment 
or  proceedings  are  to  be  revised.  This  appellate  juris- 
diction may  be  exercised  in  a  variety  of  forms,  and 
indeed  in  any  form,  which  the  legislature  may  choose 
to  prescribe ;  but,  still,  the  substance  must  exist,  be- 
fore the  form  can  be  applied  to  it.  To  operate  at  all, 
then,  under  the  constitution  of  the  United  States,  it 
is  not  sufficient,  that  there  has  been  a  decision  by 
some  officer,  or  department  of  the  United  States  ;  it 
must  be  by  one  clothed  with  judicial  authority,  and 
acting  in  a  judicial  capacity.  A  power,  therefore, 
conferred  by  congress  on  the  Supreme  Court,  to  issue 
a  mandamus  to  public  officers  of  the  United  States 
generally,  is  not  warranted  by  the  constitution  ;  for  it 
is,  in  effect,  under  such  circumstances,  an  exercise  of 
original  jurisdiction.  But  where  the  object  is  to  re- 
vise a  judicial  proceeding,  the  mode  is  wholly  imma- 
terial ;  and  a  writ  of  habeas  corpus,  or  mandamus,  a 
writ  of  error,  or  an  appeal,  may  be  used,  as  the  legis- 
lature may  prescribe. 

^  917.  The  most  usual  modes  of  exercising  appel- 
late jurisdiction,  at  least  those,  which  are  most  known 
in  the  United  States,  are  by  a  writ  of  error,  or  by  an 
appeal,  or  by  some  process  of  removal  of  a  suit  from 
an  inferior  tribunal.  An  appeal  is  a  process  of  civil 
law  origin,  and  removes  a  cause  entirely,  subjecting 
the  fact,  as  well  as  the  law,  to  a  review  and  a  re-trial. 
A  writ  of  error  is  a  process  of  common  law  origin  ; 
and  it  removes  nothing  for  re-examination,  but  the 


CH.  XXXVIII.]       JUDICIARY JURISDICTION.  653 

law.  The  former  mode  is  usually  adopted  in  cases  of 
equity  and  admiralty  jurisdiction  ;  the  latter,  in  suits 
at  common  law  tried  by  a  jury. 

§918.  It  is  observable,  that  the  language  of  the 
constitution  is,  that  "  the  Supreme  Court  shall  have 
"  appellate  jurisdiction,  both  as  to  law  and  fact,'^^ 
This  provision  was  a  subject  of  no  small  alarm  and 
misconstruction  at  the  time  of  the  adoption  of  the  con- 
stitution, as  it  was  supposed  to  confer  on  the  Supreme 
Court,  in  the  exercise  of  its  appellate  jurisdiction,  the 
power  to  review  the  decision  of  a  jury  in  mere  mat- 
ters of  fact ;  and  thus,  in  effect,  to  destroy  the  validity 
of  their  verdict,  and  to  reduce  to  a  mere  form  the  right 
of  a  trial  by  jury  in  civil  cases.  The  objection  was  at 
once  seized  hold  of  by  the  enemies  of  the  constitu- 
tion ;  and  it  was  pressed  with  an  urgency  and  zeal, 
which  were  well  nigh  preventing  its  ratification. 
There  is  certainly  some  foundation,  in  the  ambiguity 
of  the  language,  to  justify  an  interpretation,  that  such 
a  review  might  constitutionally  be  within  the  reach  of 
the  appellate  power,  if  congress  should  choose  to  carry 
it  to  that  extreme  latitude.  But,  practically  speaking, 
there  was  not  the  slightest  danger,  that  congress  would 
ever  adopt  such  a  course,  even  if  it  were  within  their 
constitutional  authority  ;  since  it  would  be  at  variance 
with  all  the  habits,  feelings,  and  institutions  of  the 
Mhole  country.  At  least  it  might  be  affirmed,  that 
congress  would  scarcely  take  such  a  step,  until  the 
people  were  prepared  to  surrender  all  the  great  secu- 
rities of  their  civil,  as  well  as  of  their  political,  rights 
and  liberties  ;  and  in  such  an  event  the  retaining  of 
the  trial  by  jury  would  be  a  mere  mockery.  The  real 
object  of  the  provision  was  to  retain  the  power  of  re- 
viewing the  fact,  as  well  as  the  law,  in  cases  of  equity 


654     CONSTITUTION  OF  THE  U.  STATES.  [BOOK  III. 

and  admiralty  and  maritime  jurisdiction.  And  the 
manner,  in  which  it  is  expressed,  was  probably  occa- 
sioned by  the  desire  to  avoid  the  introduction  of  the 
subject  of  trial  by  jury  in  civil  cases,  upon  which  the 
convention  were  greatly  divided  in  opinion. 

^919.  These  views,  however  reasonable  they  may 
seem  to  considerate  minds,  did  not  wholly  satisfy  the 
popular  opinion  ;  and  as  the  objection  had  a  vast  influ- 
ence upon  public  opinion,  and  amendments  were  pro- 
posed by  various  state  conventions  on  this  subject, 
congress  at  its  first  session  under  the  guidance  of  the 
friends  of  the  constitution,  proposed  an  amendment, 
which  was  ratified  by  the  people,  and  is  now  incorpo- 
rated into  the  constitution.  It  is  in  these  words. 
"  In  suits  at  common  law,  where  the  value  in  contro- 
versy shall  exceed  twenty  dollars,  the  right  of  a  trial 
by  jury  shall  be  preserved.  And  no  fact  tried  by  a 
jury  shall  be  otherwise  re-examined  in  any  court  of 
the  United  States,  than  according  to  the  rules  of  the 
common  law."  This  amendment  completely  struck 
down  the  objection  ;  and  has  secured  the  right  of  a 
trial  by  jury,  in  civil  cases,  in  the  fullest  latitude  of 
the  common  law.  It  is  a  most  important  a'nd  valuable 
amendment ;  and  places  upon  the  high  ground  of  con- 
stitutional right  the  inestimable  privilege  of  a  trial  by 
jury  in  civil  cases,  a  privilege  scarcely  inferior  to  that 
in  criminal  cases,  which  is  conceded  by  all  persons  to 
be  essential  to  political  and  civil  liberty. 

^  920.  The  appellate  jurisdiction  is  to  be  "  with 
such  exceptions,  and  under  such  regulations,  as  the 
congress  shall  prescribe."  But,  here,  a  question  is 
presented  upon  the  construction  of  the  constitution, 
whether  the  appellate  jurisdiction  attaches  to  the  Su- 
preme Court,  subject  to  be  withdrawn  and  modified 


CH.  XXXVIII.]       JUDICIARY JURISDICTION.  655 

by  congress  ;  or,  whether  an  act  of  congress  is  neces- 
sary to  confer  the  jurisdiction  upon  the  court.  If  the 
former  be  the  true  construction,  then  the  entire  appel- 
late jurisdiction,  if  congress  should  make  no  exceptions 
or  regulations,  would  attach  proprio  vigore  in  the 
Supreme  Court.  If  the  latter,  then,  notwithstanding 
the  imperative  language  of  the  constitution,  the  Su- 
preme Court  is  lifeless,  until  congress  have  conferred 
power  on  it.  And  if  congress  may  confer  power,  they 
may  repeal  it.  So  that  the  whole  efficiency  of  the* 
judicial  power  is  left  by  the  constitution  wholly  un- 
protected and  inert,  if  congress  shall  refrain  to  act. 
There  is  certainly  very  strong  ground  to  maintain, 
that  the  language  of  the  constitution  meant  ito  confer 
the  appellate  jurisdiction  absolutely  on  the  Supreme 
Court,  independent  of  any  action  by  congress  ;  and  to 
require  this  action  to  divest,  or  regulate  it.  The  lan- 
guage, as  to  the  original  jurisdiction  of  the  Supreme 
Court,  admits  of  no  doubt.  It  confers  it  without  any 
action  of  congress.  Why  should  not  the  same  lan- 
guage, as  to  the  appellate  jurisdiction,  have  the  same 
interpretation  ?  It  leaves  the  power  of  congress 
complete  to  make  exceptions  and  regulations  ;  but  it 
leaves  nothing  to  their  inaction.  This  construction 
was  asserted  in  argument  at  an  earlier  period  of  the 
constitution.  And  it  has  since  been  deliberately  con- 
firmed by  the  Supreme  Court. 

^921.  The  functions  of  the  judges  of  the  courts  of 
the  United  States  are  strictly  and  exclusively  judicial. 
They  cannot,  therefore,  be  called  upon  to  advise  the 
president  in  any  executive  measures  ;  or  to  give  extra- 
judicial interpretations  of  law  ;  or  to  act,  as  commis- 
sioners in  cases  of  pensions,  or  other  like  proceedings. 

^  922.  The  next  clause  of  the  first  section  of  the 


656  CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

third  article  is  :  "  The  trial  of  all  crimes,  except  in 
"  cases  of  impeachment,  shall  be  bj  jury  ;  and  such 
"  trial  shall  be  held  in  the  state,  where  such  crimes 
"  shall  have  been  committed.  But  when  not  com- 
"  mitted  within  any  state,  the  trial  shall  be  at  such 
"  place  or  places,  as  the  congress  may  by  law  have 
"  directed." 

§  923.  It  seems  hardly  necessary  in  this  place  to 
expatiate  upon  the  antiquity,  or  importance  of  the 
trial  by  jury  in  criminal  cases.  It  was  from  very 
early  times  insisted  on  by  our  ancestors  in  the 
parent  country,  as  the  great  bulwark  of  their  civil  and 
political  liberties,  and  watched  with  an  unceasing 
jealousy  and  solicitude.  The  right  constitutes  one  of 
the  fundamental  articles  of  Magna  Charta,  in  which  it 
is  declared,  "  nullus  homo  capiatur,  nee  imprisonetur, 
aut  exulet,  aut  aliquo  modo  destruatur,  ^c.  ;  nisi 
per  legale  judicium  parium  suorum,  vel  per  legem 
terrce  ;  no  man  shall  be  arrested,  nor  imprisoned, 
nor  banished,  nor  deprived  of  life,  &c.  but  by  the 
judgment  of  his  peers,  or  by  the  law  of  the  land. 
The  judgment  of  his  peers  here  alluded  to,  and  com- 
monly called,  in  the  quaint  language  of  former  times, 
a  trial  per  pais,  or  trial  by  the  country,  is  the  trial  by 
a  jury,  who  are  called  the  peers  of  the  party  accused, 
being  of  the  like  condition  and  equality  in  the  state. 
When  our  more  immediate  ancestors  removed  to 
America,  they  brought  this  great  privilege  with  them, 
as  their  birth-right  and  inheritance,  as  a  part  of  that 
admirable  common  law,  which  had  fenced  round,  and 
interposed  barriers  on  every  side  against  the  ap- 
proaches of  arbitrary  power.  It  is  now  incorporated 
into  all  our  state  constitutions,  as  a  fundamental  right ; 
and  the  constitution  of  the  United  States  would  have 


CH.  XXXVIII.]      JUDICIARY  — TRIAL  BY  JURYk  657 

been  justly  obnoxious  to  the  most  conclusive  objection, 
if  it  had  not  recognised,  and  confirmed  it  in  the  most 
solemn  terms. 

§  924.  The  great  object  of  a  trial  by  jury  in  crim- 
inal cases  is,  to  guard  against  a  spirit  of  oppression  and 
tyranny  on  the  part  of  rulers,  and  against  a  spirit  of  vio- 
lence and  vindictiveness  on  the  part  of  the  people. 
Indeed,  it  is  often  more  important  to  guard  against  the 
latter,  than  the  former.  The  sympathies  of  all  mankind 
are  enUsted  against  the  revenge  and  fury  of  a  single 
despot ;  and  every  attempt  will  be  made  to  screen  his 
victims.  But  it  is  difficult  to  escape  from  the  ven- 
geance of  an  indignant  people,  roused  into  hatred  by 
unfounded  calumnies,  or  stimulated  to  cruelty  by  bitter 
political  enmities,  or  unmeasured  jealousies.  The  ap- 
peal for  safety  can,  under  such  circumstances,  scarcely 
be  made  by  innocence  in  any  other  manner,  than  by 
the  severe  control  of  courts  of  justice,  and  by  the  firm 
and  impartial  verdict  of  a  jury  sworn  to  do  right,  and 
guided  solely  by  legal  evidence  and  a  sense  of  duty* 
In  such  a  course  there  is  a  double  security,  against  the 
prejudices  of  judges,  who  may  partake  of  the  wishes 
and  opinions  of  the  government,  and  against  the  pas- 
sions of  the  multitude,  who  may  demand  their  victim 
with  a  clamorous  precipitancy.  So  long,  indeed,  as 
this  palladium  remains  sacred  and  inviolable,  the  liber* 
ties  of  a  free  government  cannot  wholly  fall.  But  to 
give  it  real  efficiency,  it  must  be  preserved  in  its  purity 
and  dignity ;  and  not,  with  a  vieW  to  slight  inconve- 
niences, or  imaginary  burthens,  be  put  into  the  hands 
of  those,  who  are  incapable  of  estimating  its  worth,  or 
are  too  inert,  or  too  ignorant,  or  too  imbecile,  to  wield 
its  potent  armour.  Mr.  Justice  Blackstone,  with  the 
warmth  and  pride,  becoming  an  Englishman  living  un- 
J96r.  83 


658  CONSTITUTION  OF  THE  U.  STATES.     [BOOK  III. 

der  its  blessed  protection,  has  said :  "  A  celebrated 
French  writer,  who  concludes,  that  because  Rome, 
Sparta,  and  Carthage  have  lost  their  liberties,  therefore 
those  of  England  in  time  must  perish,  should  have  re- 
collected, that  Rome,  Sparta,  and  Carthage,  at  the  time, 
when  their  liberties  were  lost,  were  strangers  to  the 
trial  by  jury." 

^  925.  It  is  observable,  that  the  trial  of  all  crimes  is 
not  only  to  be  by  jury,  but  to  be  held  in  the  state, 
where  they  are  committed.  The  object  of  this  clause 
is  to  secure  the  party  accused  from  being  dragged  to 
a  trial  in  some  distant  state,  away  from  his  friends,  and 
witnesses,  and  neighbourhood  ;  and  thus  subjected 
to  the  verdict  of  mere  strangers,  who  may  feel  no 
common  sympathy,  or  who  may  even  cherish  animosi- 
ties, or  prejudices  against  him.  Besides  this  ;  a  trial 
in  a  distant  state  or  territory  might  subject  the  party  to 
the  most  oppressive  expenses,  or  perhaps  even  to  the 
inability  of  procuring  the  proper  witnesses  to  establish 
his  innocence.  There  is  little  danger,  indeed,  that  con- 
gress would  ever  exert  their  power  in  so  oppres- 
sive, and  unjustifiable  a  manner.  But  upon  a  subject, 
so  vital  to  the  security  of  the  citizen,  it  was  fit  to  leave 
as  little  as  possible  to  mere  discretion.  By  the  com- 
mon law,  the  trial  of  all  crimes  is  required  to  be  in  the 
county,  where  they  are  committed.  Nay,  it  originally 
carried  its  jealousy  still  farther,  and  required,  that  the 
jury  itself  should  come  from  the  vicinage  of  the  place, 
where  the  crime  was  alleged  to  be  committed.  This 
was  certainly  a  precaution,  which,  however  justifiable 
in  an  early  and  barbarous  state  of  society,  is  little  com- 
mendable in  its  more  advanced  stages.  It  has  been 
justly  remarked,  that  in  such  cases  to  summon  a  jury, 
labouring  under  local  prejudices,  is  laying  a  snare  for 


CH.  XXXVIII.]     JUDICIARY  —  TRIAL  BY  JURY.  659 

their  consciences  ;  and  though  they  should  have  virtue 
and  vigour  of  mind  sufficient  to  keep  them  upright,  the 
parties  will  grow  suspicious,  and  indulge  many  doubts 
of  the  impartiality  of  the  trial.  It  was  doubtless  by 
analogy  to  this  rule  of  the  common  law,  that  all  criminal 
trials  are  required  to  be  in  the  state,  where  they  were 
committed.  But  as  crimes  may  be  committed  on  the 
high  seas,  and  elsewhere,  out  of  the  territorial  jurisdiction 
of  a  state,  it  was  indispensable,  that,  in  such  cases,  con- , 
gress  should  be  enabled  to  provide  the  place  of  trial. 

§  926.  But,  although  this  provision  of  a  trial  by  jury 
in  criminal  cases  is  thus  constitutionally  preserved  to  all 
citizens,  the  jealousies  and  alarms  of  the  opponents  of 
the  constitution  were  not  quieted.  They  insisted,  that 
a  bill  of  rights  was  indispensable  upon  other  subjects, 
and  that  upon  this,  farther  auxiliary  rights  ought  to  have 
been  secured.  These  objections  found  their  way  into 
the  state  conventions,  and  were  urged  with  great  zeal 
against  the  constitution.  They  did  not,  however,  pre- 
vent the  adoption  of  that  instrument.  But  they  pro- 
duced such  a  strong  effect  upon  the  public  mind,  that 
congress,  immediately  after  their  first  meeting,  propos- 
ed certain  amendments,  embracing  all  the  suggestions, 
which  appeared  of  most  force ;  and  these  amendments 
were  ratified  by  the  several  states,  and  are  now  be- 
come a  part  of  the  constitution.  They  are  contained  in 
the  fifth  and  six  articles  of  the  amendments,  and  are  as 
follows : 

"  No  person  shall  be  held  to  answer  for  a  capital  or 
"  otherwise  infamous  crime,  unless  on  a  presentment 
"  or  indictment  of  a  grand  jury,  except  in  cases  arising 
"  in  the  land  or  naval  forces,  or  in  the  militia,  when  in 
"actual  service,  in  time  of  war,  or  public  danger: 
"  nor  shall  any  person  be  subject,  for  the  same  offence. 


660     CONSTITUTION  OF  THE  U.  STATES.  [BOOK  III, 

"  to  be  twice  put  in  jeopardy  of  life  or  limb  ;  nor  shall 
"  be  compelled,  in  any  criminal  case,  to  be  a  witness 
"against  himself;  nor  be  deprived  of  life,  liberty,  or 
**  property,  without  due  process  of  law^ ;  nor  shall  pri- 
"  vate  property  be  talien  for  public  use,  without  just 
"  compensation." 

•"  In  all  criminal  prosecutions,  the  accused  shall  en- 
"joy  the  right  to  a  speedy  and  public  trial,  by  an  im- 
"  partial  jury  of  the  state  and  district,  wherein  the 
"  crime  shall  have  been  committed  ;  which  district 
"  shall  have  been  previously  ascertained  by  law ;  and 
"  to  be  informed  of  the  nature  and  cause  of  the  accu- 
<*  sation  ;  to  be  confronted  with  the  witnesses  against 
"  him ;  to  have  compulsory  process  for  obtaining  wit- 
"  nesses  in  his  favour ;  and  to  have  the  assistance  of 
"  counsel  for  his  defence." 

§  927.  Upon  the  main  provisions  of  these  articles  a 
few  remarks  only  will  be  made,  since  they  are  almost 
self-evident,  and  can  require  few  illustrations  to  estab- 
lish their  utility  and  importance. , 

^  928.  The  first  clause  requires  the  interposition  of 
a  grand  jury,  by  way  of  presentment  or  indictment, 
before  the  party  accused  can  be  required  to  answer  to 
any  capital  and  infamous  crime,  charged  against  him. 
And  this  is  regularly  true  at  the  common  law  of  all 
offences,  above  the  grade  of  common  misdemeanors. 
A  grand  jury,  it  is  well  known,  are  selected  in  the  man- 
ner prescribed  by  law,  and  duly  sworn  to  make  inquiry, 
and  present  all  offences  committed  against  the  author- 
ity of  the  state  government,  wdthin  the  body  of  the 
county,  for  which  they  are  impannelled.  In  the  na- 
tional courts,  they  are  sworn  to  inquire,  and  present 
all  offences  committed  against  the  authority  of  the 
national  government  within    the   state  or  district,  for 


CH.  XXXVIII.]     JUDICIARY  —  TRIAL  BY  JURY.  661 

which  they  are  impannelled,  or  elsewhere  within  the 
jurisdiction  of  the  national  government.  The  grand 
jury  may  consist  of  any  number,  not  less  than  twelve, 
nor  more  than  twenty-three  ;  and  twelve  at  least  must 
concur  in  every  accusation.  They  sit  in  secret,  and 
examine  the  evidence  laid  before  them  by  themselves. 
A  presentment,  properly  speaking,  is  an  accusation 
made  ex  mero  motu  by  a  grand  jury  of  an  offence  up- 
on their  own  observation  and  knowledge,  or  upon  evi- 
dence before  them,  and  without  any  bill  of  indictment 
laid  before  them  at  the  suit  of  the  government.  An 
indictment  is  a  written  accusation  of  an  offence  prefer- 
red to,  and  presented,  upon  oath,  as  true,  by  a  grand 
jury  at  the  suit  of  the  government.  Upon  a  present- 
ment the  proper  officer  of  the  court  must  frame  an  in- 
dictment, before  the  party  accused  can  be  put  to  an- 
swer it.  But  an  indictment  is  usually  in  the  first  in- 
stance framed  by  the  officers  of  the  government,  and 
laid  before  the  grand  jury.  When  the  grand  jury  have 
heard  the  evidence,  if  they  are  of  opinion,  that  the  in- 
dictment is  groundless,  or  not  supported  by  evidence, 
they  used  formerly  to  endorse  on  the  back  of  the  bill, 
"  ignoramus,"  or  we  know  nothing  of  it,  whence  the 
bill  was  said  to  be  ignored.  But  now  they  assert  in 
plain  English,  "  not  a  true  bill,"  or  which  is  a  better 
way,  "  not  found ; "  and  then  the  party  is  entitled  to 
be  discharged,  if  in  custody,  without  farther  answer. 
But  a  fresh  bill  may  be  preferred  against  him  by  anoth- 
er grand  jury.  If  the  grand  jury  are  satisfied  of  the 
truth  of  the  accusation,  then  they  write  on  the  back  of 
the  bill,  "  a  true  bill,"  (or  anciently,  "  billa  vera.'')  The 
bill  is  then  said  to  be  found,  and  is  publicly  returned 
into  court ;  the  party  stands  indicted,  and  may  then 
be  required  to  answer  the  matters  charged  against 
him. 


662     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

^  929.  From  this  summary  statement  it  is  obvious, 
that  the  grand  jury  perform  most  important  public 
functions ;  and  are  a  great  security  to  the  citizens 
against  vindictive  prosecutions,  either  by  the  govern- 
ment, or  by  political  partisans,  or  by  private  enemies. 
Nor  is  this  all ;  the  indictment  must  charge  the  time, 
and  place,  and  nature,  and  circumstances,  of  the  of- 
fence, v^ith  clearness  and  certainty  ;  so  that  the  party 
may  have  full  notice  of  the  charge,  and  be  able  to 
make  his  defence  v^^ith  all  reasonable  knowledge  and 
ability. 

§  930.  Another  clause  declares,  that  no  person  shall 
be  subject,  "  for  the  same  offence,  to  be  twice  put  in 
jeopardy  of  life  and  hmb."  This,  again,  is  another 
great  privilege  secured  by  the  common  law.  The 
meaning  of  it  is,  that  a  party  shall  not  be  tried  a  second 
time  for  the  same  offence,  after  he  has  once  been  con- 
victed, or  acquitted  of  the  offence  charged,  by  the  ver- 
dict of  a  jury,  and  judgment  has  passed  thereon  for,  or 
against  him.  But  it  does  not  mean,  that  he  shall  not 
be  tried  for  the  offence  a  second  time,  if  the  jury  have 
been  discharged  without  giving  any  verdict ;  or,  if, 
having  given  a  verdict,  judgment  has  been  arrested 
upon  it,  or  a  new  trial  has  been  granted  in  his  favour ; 
for,  in  such  a  case,  his  life  or  limb  cannot  judicially  be 
said  to  have  been  put  in  jeopardy. 

^931.  The  next  clause  prohibits  any  person  from 
being  compelled,  in  any  criminal  case,  to  be  a  witness 
against  himself,  or  from  being  deprived  of  life,  liberty,  or 
property,  without  due  process  of  law.  This  also  is  but 
an  affirmance  of  a  common  law  privilege.  But  it  is  of 
inestimable  value.  It  is  well  known,  that  in  some 
countries,  not  only  are  criminals  compelled  to  give  evi- 
dence against  themselves,  but  are  subjected  to  the  rack 


CH.  XXXVIII.]       JUDICIARY  —  TRIAL  BY  JURY.  663 

or  torture  in  order  to  procure  a  confession  of  guilt.  And 
what  is  worse,  it  has  been  (as  if  in  mockery  or  scorn) 
attempted  to  excuse,  or  justify  it,  upon  the  score  of 
mercy  and  humanity  to  the  accused.  It  has  been  con- 
trived, (it  is  pretended,)  that  innocence  should  manifest 
itself  by  a  stout  resistance,  or  guilt  by  a  plain  confes- 
sion ;  as  if  a  man's  innocence  were  to  be  tried  by  the 
hardness  of  his  constitution,  and  his  guilt  by  the  sensi- 
bility of  his  nerves.  Cicero,  many  ages  ago,  though  he 
lived  in  a  state,  wherein  it  was  usual  to  put  slaves  to 
the  torture,  in  order  to  furnish  evidence,  has  denounced 
the  absurdity  and  wickedness  of  the  measure  in  terms 
of  glowing  eloquence,  as  striking,  as  they  are  brief. 
They  are  conceived  in  the  spirit  of  Tacitus,  and 
breathe  all  his  pregnant  and  indignant  sarcasm.  Ulpian, 
also,  at  a  still  later  period  in  Roman  jurisprudence, 
stamped  the  practice  with  severe  reproof. 

§  932.  The  other  part  of  the  clause  is  but  an  en- 
largement of  the  language  of  magna  charta,  "  nee  super 
eum  ibimus,  nee  super  eum  mittimus,  nisi  per  legale  ju- 
dicium parium  suorum,  vel  per  legem  terroe,''  neither 
will  we  pass  upon  him,  or  condemn  him,  but  by  the 
lawful  judgment  of  his  peers,  or  by  the  law  of  the  land. 
Lord  Coke  says,  that  these  latter  words,  per  legem  ter- 
rcB  (by  the  law  of  the  land,)  mean  by  due  process  of 
law,  that  is,  without  due  presentment  or  indictment,  and 
being  brought  in  to  answer  thereto  by  due  process  of 
the  common  law.  So  that  this  clause  in  effect  affirms 
the  right  of  trial  according  to  the  process  and  proceed- 
ings of  the  common  law. 

^  933.  The  concluding  clause  is,  that  private  prop- 
erty shall  not  be  taken  for  public  use  without  just  com- 
pensation. This  is  an  affirmance  of  a  great  doctrine 
established  by  the  common  law  for  the  protection  of 


664  CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III, 

private  property.  It  is  founded  in  natural  equity,  and 
is  laid  down  by  jurists  as  a  principle  of  universal  law. 
Indeed,  in  a  free  government,  almost  all  other  rights 
would  become  utterly  worthless,  if  the  government  pos- 
sessed an  uncontro  liable  power  over  the  private  fortune 
of  every  citizen.  One  of  the  fundamental  objects  of 
every  good  government  must  be  the  due  administra- 
tion of  justice ;  and  how  vain  it  would  be  to  speak 
of  such  an  administration,  when  all  property  is  sub- 
ject to  the  will  or  caprice  of  the  legislature,  and  the 
rulers. 

^  934.  The  other  article  in  declaring,  that  the  ac- 
cused shall  enjoy  the  right  to  a  speedy  and  public  trial 
by  an  impartial  jury  of  the  state  or  district,  wherein  the 
crime  shall  have  been  committed,  (which  district  shall 
be  previously  ascertained  by  ,law,)  and  to  be  informed 
of  the  nature  and  cause  of  the  accusation,  and  to  be 
confronted  with  the  witnesses  against  him,  does  but 
follow  out  the  established  course  of  the  common  law  in 
all  trials  for  crimes.  The  trial  is  always  public  ;  the 
witnesses  are  sworn,  and  give  in  their  testimony  (at 
least  in  capital  cases)  in  the  presence  of  the  accused ; 
the  na^ture  and  cause  of  the  accusation  is  accurately 
laid  down  in  the  indictment ;  and  the  trial  is  at  once 
speedy,  impartial,  and  in  the  district  of  the  offence* 
Without  in  any  measure  impugning  the  propriety  of 
these  provisions,  it  may  be  suggested,  that  there  seems 
to  have  been  an  undue  solicitude  to  introduce  into  the 
constitution  some  of  the  general  guards  and  proceed- 
ings of  the  common  law  in  criminal  trials,  (truly  admira- 
ble in  themselves)  without  sufficiently  adverting  to  the 
consideration,  that  unless  the  whole  system  is  incor- 
porated, and  especially  the  law  of  evidence,  a  corrupt 
legislature,  or  a  debased  and  servile  people,  may  ren- 


CH.  XXXVIII.]    JUDICIARY  —  TRIAL  BY  JURY.  665 

der  the  whole  little  more,  than  a  solemn  pageantry.  If, 
on  the  other  hand,  the  people  are  enlightened,  and 
honest,  and  zealous  in  defence  of  their  rights  and  liber- 
ties, it  will  be  impossible  to  surprise  them  into  a  sur- 
render of  a  single  valuable  appendage  of  the  trial  by 

jury- 

§  935.  The  remaining  clauses  are  of  more  direct 
significance,  and  necessity.  The  accused  is  entitled  to 
have  compulsory  process  for  obtaining  witnesses  in  his 
favour,  and  to  have  the  assistance  of  counsel.  A  very 
short  review  of  the  state  of  the  common  law,  on  these 
points,  will  put  their  propriety  beyond  question.  In  the 
first  place,  it  was  an  anciently  and  commonly  received 
practice,  derived  from  the  civil  law,  and  which  Mr.  Jus- 
tice Blackstone  says,  in  his  day,  still  obtained  in  France, 
though  since  the  revolution  it  has  been  swept  away,  not 
to  suffer  the  party  accused  in  capital  cases  to  exculpate 
himself  by  the  testimony  of  any  witnesses.  Of  this 
practice  the  courts  grew  so  heartily  ashamed  from  its 
unreasonable  and  oppressive  character,  that  another 
practice  was  gradually  introduced,  of  examining  wit- 
nesses for  the  accused,  but  not  upon  oath  ;  the  con- 
sequence of  which  was,  that  the  jury  gave  less  credit 
to  this  latter  evidence,  than  to  that  produced  by  the 
government.  Sir  Edward  Coke  denounced  the  prac- 
tice as  tyrannical  and  unjust ;  and  contended,  that,  in 
criminal  cases,  the  party  accused  was  entitled  to  have 
witnesses  sworn  for  him.  The  house  of  commons, 
soon  after  the  accession  of  the  house  of  Stuart  to  the 
throne  of  England,  insisted,  in  a  particular  bill,  then 
pending,  and,  against  the  efforts  both  of  the  crown  and 
the  house  of  lords,  carried  a  clause  affirming  the  right, 
in  cases  tried  under  that  act,  of  witnesses  being  sworn 
for,  as  well  as  against,  the  accused.     By  the  statute  of 

Mr.  84 


666  CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 

7  Will.  3,  ch.  3,  the  same  measure  of  justice  was  es- 
tablished throughout  the  realm,  in  cases  of  treason  ;  and 
afterwards,  in  the  reign  of  Queen  Anne,  the  like  rule 
was  extended  to  all  cases  of  treason  and  felony.  The 
right  seems  never  to  have  been  doubted,  or  denied,  in 
cases  of  mere  misdemeanors.  For  what  causes,  and 
upon  what  grounds  this  distinction  was  maintained,  or 
even  excused,  it  is  impossible  to  assign  any  satisfactory, 
or  even  plausible  reasoning.  Surely,  a  man's  life  must 
be  of  infinitely  more  value,  than  any  subordinate  pun- 
ishment ;  and  if  he  might  protect  himself  against  the 
latter  by  proofs  of  his  innocence,  there  would  seem  to 
be  irresistible  reasons  for  permitting  him  to  do  the  same 
in  capital  offences.  The  common  suggestion  has  been, 
that  in  capital  cases  no  man  could,  or  rather  ought,  to 
be  convicted,  unless  upon  evidence  so  conclusive  and 
satisfactory,  as  to  be  above  contradiction  or  doubt.  But 
who  can  say,  whether  it  be  in  any  case  so  high,  until 
all  the  proofs  in  favour,  as  well  as  against,  the  party 
have  been  heard  ?  Witnesses  for  the  government  may 
swear  falsely,  and  directly  to  the  matter  in  charge  ;  and, 
until  opposing  testimony  is  heard,  there  may  not  be  the 
slightest  ground  to  doubt  its  truth ;  and  yet,  when  such 
is  heard,  it  may  be  incontestible,  that  it  is  wholly  un- 
worthy of  belief.  The  real  fact  seems  to  be,  that  the 
practice  was  early  adopted  into  the  criminal  law  in 
capital  cases,  in  which  the  crown  was  supposed  to  take 
a  peculiar  interest,  in  base  subserviency  to  the  wishes 
of  the  latter.  It  is  a  reproach  to  the  criminal  jurispru- 
dence of  England,  which  the  state  trials,  antecedently 
to  the  revolution  of  1688,  but  too  strongly  sustain. 
They  are  crimsoned  with  the  blood  of  persons,  who 
w^ere  condemned  to  death,  not  only  against  law,  but 
against  the  clearest  rules  of  evidence. 


CH.  XXXVIII.]      JUDICIARY TRIAL  BY  JURY.  667 

§  936.  Anotlier  anomaly  in  the  common  law  is,  that 
in  capital  cases  the  prisoner  is  not,  upon  his  trial  upon 
the  general  issue,  entitled  to  have  counsel,  unless  some 
matter  of  law  shall  arise,  proper  to  be  debated.  That 
is,  in  other  words,  that  he  shall  not  have  the  benefit  of 
the  talents  and  assistance  of  counsel  in  examining  the 
witnesses,  or  making  his  defence  before  the  jury.  Mr. 
Justice  Blackstone,  with  all  his  habitual  reverence  for 
the  institutions  of  English  jurisprudence,  as  they  ac- 
tually exist,  speaks  out  upon  this  subject  with  the  free 
spirit  of  a  patriot  and  a  jurist.  This,  he  says,  is  "  a 
rule,  which,  however  it  may  be  palliated  under  cover  of 
that  noble  declaration  of  the  law,  when  rightly  under- 
stood, that  the  judge  shall  be  counsel  for  the  prisoner, 
that  is,  shall  see,  that  the  proceedings  against  him  are 
legal,  and  strictly  regular,  seems  to  be  not  all  of  a  piece 
with  the  rest  of  the  humane  treatment  of  prisoners  by 
the  English  law.  For  upon  what  face  of  reason  can 
that  assistance  be  denied  to  save  the  life  of  a  man, 
which  is  yet  allowed  him  in  prosecutions  for  every  pet- 
ty trespass."  The  defect  has  indeed  been  cured  in 
England  in  cases  of  treason  ;  but  it  still  remains  unpro- 
vided for  in  all  other  cases,  to  (what  one  can  hardly 
help  deeming)  the  discredit  of  the  free  genius  of  the 
Enghsh  constitution. 

^  937.  The  wisdom  of  both  of  these  provisions  is, 
therefore,  manifest,  since  they  make  matter  of  constitu- 
tional right,  what  the  common  law  had  left  in  a  most 
imperfect  and  questionable  state.  The  right  to  have 
witnesses  sworn,  and  counsel  employed  for  the  prison- 
er, are  scarcely  less  important  privileges,  than  the  right 
of  a  trial  by  jury.  The  omission  of  them  in  the  con- 
stitution is  a  matter  of  surprise ;  and  their  present  in- 
corporation is  matter  of  honest  congratulation  among 
all  the  friends  of  rational  liberty. 


668        CONSTITUTION  OF  THE  tJ.  STATES.       [bOOK  III. 

§  938.  There  yet  remain  one  or  two  subjects  con- 
nected with  the  judiciary,  which,  however,  grow  out  of 
other  amendments  made  to  the  constitution  ;  and  will 
naturally  find  their  place  in  our  review  of  that  part  of 
these  Commentaries,  which  embraces  a  review  of  the- 
remaining  amendments. 


CH.  XXXIX.]         DEFINITION  OF  TREASON.  669 

CHAPTER  XXXIX. 

liEFINITION    AND    EVIDENCE    OF    TREASON. 

§  939.  The  third  section  of  the  third  article  is  as 
follows  :  "  Treason  against  the  United  States  shall  con- 
*<  sist  only  in  levying  war  against  them,  or  in  adhering 
"  to  their  enemies,  giving  them  aid  and  comfort.  No 
"  person  shall  be  convicted  of  treason,  unless  on  the 
"  testimony  of  two  witnesses  to  the  same  overt  act,  or 
"  on  confession  in  open  court." 

^  940.  Treason  is  generally  deemed  the  highest 
crime,  which  can  be  committed  in  civil  society,  since 
its  aim  is  an  overthrow  of  the  government,  and  a  pub- 
lic resistance  of  its  powers  by  force.  Its  tendency  is  to 
create  universal  danger  and  alarm  ;  and  on  this  account 
it  is  peculiarly  odious,  and  often  visited  with  the  deep- 
est public  resentment.  Even  a  charge  of  this  nature, 
made  against  an  individual,  is  deemed  so  opprobrious, 
that,  whether  just  or  unjust,  it  subjects  him  to  suspicion 
and  hatred ;  and,  in  times  of  high  political  excitement, 
acts  of  a  very  subordinate  nature  are  often,  by  popular 
prejudices,  as  well  as  by  royal  resentment,  magnified 
into  this  ruinous  importance.  It  is  therefore,  of  very 
great  importance,  that  its  true  nature  and  limits  should 
be  exactly  ascertained ;  and  Montesquieu  was  so  sen- 
sible of  it,  that  he  has  not  scrupled  to  declare,  that  if 
the  crime  of  treason  be  indeterminate,  that  alone  is 
sufficient  to  make  any  government  degenerate  into  ar- 
bitrary power.  The  history  of  England  itself  is  full  of 
melancholy  instruction  on  this  subject.  By  the  ancient 
common  law  it  was  left  very  much  to  discretion  to  de- 


670        CONSTITUTION  OF  THE  U.  STATES.        [BOOK  III. 

termine,  what  acts  were,  and  were  not,  treason ;  and 
the  judges  of  those  times,  holding  office  at  the  pleasure  of 
the  crown,  became  but  too  often  instruments  in  its  hands 
of  foul  injustice.  At  the  instance  of  tyrannical  princes 
they  had  abundant  opportunities  to  create  constructive 
treasons  ;  that  is,  by  forced  and  arbitrary  coilstructions, 
to  raise  offences  into  the  guilt  and  punishment  of  trea- 
son, which  were  not  suspected  to  be  such.  The  griev- 
ance of  these  constructive  treasons  was  so  enormous, 
and  so  often  weighed  down  the  innocent,  and  the  pa- 
triotic, that  it  was  found  necessary,  as  early  as  the 
reign  of  Edward  the  Third,  for  parliament  to  interfere, 
and  arrest  it,  by  declaring  and  defining  all  the  different 
branches  of  treason.  This  statute  has  ever  since  re- 
mained the  pole  star  of  English  jurisprudence  upon  this 
subject.  And  although,  upon  temporary  emergencies, 
and  in  arbitrary  reigns,  since  that  period,  other  treasons 
have  been  created,  the  sober  sense  of  the  nation  has 
generally  abrogated  them,  or  reduced  their  power  with- 
in narrow  limits. 

^941.  Nor  have  republics  been  exempt  from  vio- 
lence and  tyranny  of  a  similar  character.  The  Feder- 
eralist  has  justly  remarked,  that  newfangled  and  artifi- 
cial treasons  have  been  the  great  engines,  by  which 
violent  factions,  the  natural  offspring  of  free  govern- 
ments, have  usually  wreaked  their  alternate  malignity 
on  each  other. 

§  942.  It  was  under  the  influence  of  these  admoni- 
tions furnished  by  history  and  human  experience,  that 
the  convention  deemed  it  necessary  to  interpose  an  im- 
passable barrier  against  arbitrary  constructions,  either 
by  the  courts  or  by  congress,  upon  the  crime  of  trea- 
son. It  confines  it  to  two  species ;  first,  the  levying  of 
war  against  the  United  States  ;  and  secondly,  adhering 


CH.  XXXIX.]  EVIDENCE  OF  TREASON.  671 

to  their  enemies,  giving  them  aid  and  comfort.  In  so 
doing,  they  have  adopted  the  vefy  words  of  the  Stat- 
ute of  Treason  of  Edward  the  Third ;  and  thus  by 
implication,  in  order  to  cut  off  at  once  all  chances 
of  arbitrary  constructions,  they  have  recognised  the 
well-settled  interpretation  of  these  phrases  in  the  ad- 
ministration of  criminal  law,  which  has  prevailed  for 
ages. 

^  943.  The  other  part  of  the  clause,  requiring  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or 
a  confession  in  open  court,  to  justify  a  conviction  is 
founded  upon  the  same  reasoning.  A  like  provision 
exists  in  British  jurisprudence,  founded  upon  the 
same  great  policy  of  protecting  men  against  false  tes- 
timony, and  unguarded  confessions,  to  their  utter  ruin. 
It  has  been  well  remarked,  that  confessions  are  the 
weakest  and  most  suspicious  of  all  testimony ;  ever 
liable  to  be  obtained  by  artifice,  false  hopes,  promises 
of  favour,  or  menaces ;  seldom  remembered  accurately, 
or  reported  with  due  precision ;  and  incapable,  in  their 
nature,  of  being  disproved  by  other  negative  evidence. 
To  which  it  may  be  added,  that  it  is  easy  to  be  forged, 
and  the  most  difficult  to  guard  against.  An  unprinci- 
pled demagogue,  or  a  corrupt  courtier,  might  otherwise 
hold  the  lives  of  the  purest  patriots  in  his  hands,  with- 
out the  means  of  proving  the  falsity  of  the  charge,  if  a 
secret  confession,  uncorroborated  by  other  evidence, 
would  furnish  a  sufficient  foundation  and  proof  of  guilt. 
And  wisely,  also,  has  the  constitution  declhied  to  suffer 
the  testimony  of  a  single  witness,  however  high,  to 
be  sufficient  to  estabfish  such  a  crime,  which  rouses 
against  the  victim  at  once  private  honour  and  public 
hostility.  There  must,  as  there  should,  be  a  con- 
currence of  two  witnesses  to  the  same  overt  act,  that  is, 


672   CONSTITUTION  OF  THE  U.  STATES.   [bOOK  III. 

open  act  of  treason,  who  are  above  all  reasonable  ex- 
ception. 

§  944.  The  subject  of  the  power  of  congress  to 
declare  the  punishment  of  treason,  and  the  consequent 
disabilities,  have  been  already  commented  on  in  another 
place. 


CH.  XL.]  PRIVILEGES  OF  CITIZENS.  673 

CHAPTER  XL. 

PRIVILEGES  OF    CITIZENS FUGITIVES SLAVES. 

§  945.  The  fourth  article  of  the  constitution  con- 
tains several  important  provisions,  some  of  which  have 
been  already  considered.  Among  these  are,  the  faith 
and  credit  to  be  given  to  state  acts,  records,  and  judg- 
ments, and  the  mode  of  proving  them,  and  the  effect 
thereof;  the  admission  of  new  states  into  the  Union; 
and  the  regulation  and  disposal  of  the  territory,  and 
other  property  of  the  United  States.  We  shall  now 
proceed  to  those,  which  still  remain  for  examination. 

§  946.  The  first  is,  "The  citizens  of  each  state  shall 
"  be  entided  to  all  privileges  and  immunities  of  citizens 
"in  the  several  states."  There  was  an  article  upon 
the  same  subject  in  the  confederation,  which  declared, 
"  that  the  free  inhabitants  of  each  of  these  states,  pau- 
pers, vagabonds,  and  fugitives  from  justice  excepted, 
shall  be  entitled  to  all  privileges  and  immunities  of  free 
citizens  in  the  several  states ;  and  the  people  of  each 
state  shall,  in  every  other,  enjoy  all  the  privileges  of 
trade  and  commerce,  subject  to  the  same  duties,  im- 
positions, and  restrictions,  as  the  inhabitants  thereof 
respectively,"  &c.  It  was  remarked  by  the  Federal- 
ist, that  there  is  a  strange  confusion  in  this  language. 
Why  the  terms,  free  inhabitants,  are  used  in  one  part 
of  the  article,  free  citizens  in  another,  and  people  in 
another ;  or  what  is  meant  by  superadding  to  "  all  priv- 
ileges and  immunities  of  free  citizens,"  "  all  the  privi- 
leges of  trade  and  commerce,"  cannot  easily  be  deter- 
mined.    It  seems  to  be  a  construction,  however,  scarce- 

Ahr.  85 


674  CONSTITUTION  OF  THE  r.  STATES.    [bOOK  III. 

]y  avoidable,  that  those,  who  come  under  the  denom- 
ination of  free  inhabitants  of  a  state,  although  not  citi- 
zens of  such  state,  are  entitled,  in  every  other  state,  to 
ali  the  privileges  oifree  citizens  of  the  latter ;  that  is  to 
greater  privileges,  than  they  may  be  entitled  to  in  their 
own  state. 

^  947.  The  provision  in  the  constitution  avoids  all 
this  ambiguity.  It  is  plain  and  simple  in  its  language ; 
and  its  object  is  not  easily  to  be  mistaken.  Connected 
with  the  exclusive  power  of  naturalization  in  the  na- 
tional government,  it  puts  at  rest  many  of  the  difficul- 
ties, which  affected  the  construction  of  the  article  of 
the  confederation.  It  is  obvious,  that,  if  the  citizens  of 
each  state  were  to  be  deemed  aliens  to  each  other,  they 
could  not  take,  or  hold  real  estate,  or  other  privileges, 
except  as  other  aliens.  The  intention  of  this  clause 
was  to  confer  on  them,  if  one  may  so  say,  a  general 
citizenship  ;  and  to  communicate  all  the  privileges  and 
immunities,  which  the  citizens  of  the  same  state  would 
be  entided  to  under  the  like  circumstances. 

^  948.  The  next  clause  is  as  follows :  "  A  person 
"  charged  in  any  state  with  treason,  felony,  or  other 
"crime,  who  shall  flee  from  justice,  and  be  found  in 
"  another  state,  shall  on  demand  of  the  executive  au- 
"  thority  of  the  state,  from  which  he  fled,  be  delivered 
"  up,  to  be  removed  to  the  state  having  jurisdiction  of 
"  the  crime."  A  provision,  substantially  the  same,  ex- 
isted under  the  confederation. 

^  949.  It  has  been  often  made  a  question,  how 
far  any  nation  is,  by  the  law  of  nations,  and  independ- 
ent of  any  treaty  stipulations;  bound  to  surrender  upon 
demand  fugitives  from  justice,  who,  having  committed 
crimes  in  another  country,  have  fled  thither  for  shelter. 
Mr.  Chancellor  Kent  considers  it  clear  upon  principle, 


CH.  XL.]  FUGITIVE    SLAVES.  675 

as  well  as  authority,  that  every  state  is  bound  to  deny 
an  asylum  to  criminals,  and,  upon  application  and  due 
examination  of  the  case,  to  surrender  the  fugitive  to 
the  foreign  state,  where  the  crime  has  been  committed. 
Other  distinguished  judges  and  jurists  have  entertain- 
ed a  different  opinion.  It  is  not  uncommon  for  trea- 
ties to  contain  mutual  stipulations  for  the  surrender  of 
criminals ;  and  the  United  States  have  sometimes  been 
a  party  to  such  an  arrangement. 

§  950.  But,  however  the  point  may  be,  as  to  for- 
eign nations,  it  cannot  be  questioned,  that  it  is  of  vital 
importance  to  the  public  administration  of  criminal  jus- 
tice, and  the  security  of  the  respective  states,  that 
criminals,  who  have  committed  crimes  therein,  should 
not  find  an  asylum  in  other  states ;  but  should  be  sur- 
rendered up  for  trial  and  punishment.  It  is  a  power 
most  salutary  in  its  general  operation,  by  discouraging 
crimes,  and  cutting  off  the  chances  of  escape  from  pun- 
ishment. It  will  promote  harmony  and  good  feelings 
among  the  states ;  and  it  will  increase  the  general 
sense  of  the  blessings  of  the  national  government.  It 
will,  moreover,  give  strength  to  a  great  moral  duty, 
which  neighbouring  states  especially  owe  to  each  other, 
by  elevating  the  policy  of  the  mutual  suppression  of 
crimes  into  a  legal  obligation.  Hitherto  it  has  proved 
as  useful  in  practice,  as  it  is  unexceptionable  in  its  char- 
acter. 

^  95 1  The  next  clause  is,  "  No  person  held  to  ser- 
"  vice  or  labor  in  one  state  under  the  laws  thereof, 
"  escaping  into  another  shall  in  consequence  of  any  law 
"  or  regulation  therein  be  discharged  from  such  service 
"  or  labour  ;  but  shall  be  delivered  up  on  the  claim  of 
"the  party,  to  whom  such  service  or  labour  may  be 
«  due." 


676  CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

^  952.  This  clause  was  introduced  into  the  consti- 
tution solely  for  the  benefit  of  the  slave-holding  states, 
to  enable  them  to  reclaim  their  fugitive  slaves,  who 
should  escape  into  other  states,  where  slavery  is 
not  tolerated.  The  want  of  such  a  provision  under 
the  confederation  was  felt,  as  a  grievous  inconvenience, 
by  the  slave-holding  states,  since  in  many  states  no  aid 
whatsoever  would  be  allowed  to  the  owners  ;  and  some- 
times indeed  they  met  with  open  resistance.  In  fact, 
it  cannot  escape  the  attention  of  every  intelligent  read- 
er, that  many  sacrifices  of  opinion  and  feeling  are  to  be 
found  made  by  the  Eastern  and  Middle  states  to  the 
peculiar  interests  of  the  south.  This  forms  no  just  sub- 
ject of  complaint ;  but  it  should  for  ever  repress  the  de- 
lusive and  mischievous  notion,  that  the  south  has  not  at 
all  times  had  its  full  share  of  benefits  from  the  Union. 


CH.  XLI.]  GUARANTY  TO  THE  STATES.  677 

CHAPTER  XLI. 

GUARANTY    OF    REPUBLICAN    GOVERNMENT MODE 

OF    MAKING    AMENDMENTS. 

§  953.  The  fourth  section  of  the  fourth  article  is  as 
follows :  "  The  United  States  shall  guaranty  to  every 
"  state  in  this  Union  a  republican  form  of  government ; 
"  and  shall  protect  each  of  them  against  invasion  ;  and 
"  on  application  of  the  legislature,  or  of  the  executive, 
"  when  the  legislature  cannot  be  convened,  against 
"  domestic  violence." 

§  954.  The  want  of  a  provision  of  this  nature  was 
felt,  as  a  capital  defect  in  the  plan  of  the  confederation, 
as  it  might  in  its  consequences  endanger,  if  not  over- 
throw, the  Union.  Without  a  guaranty,  the  assistance 
to  be  derived  from  the  national  government  in  repelling 
domestic  dangers,  which  might  threaten  the  existence 
of  the  state  constitutions,  could  not  be  demanded,  as  a 
right,  from  the  national  government.  Usurpation  might 
raise  its  standard,  and  trample  upon  the  liberties  of  the 
people,  while  the  national  government  could  legally  do 
nothing  more,  than  behold  the  encroachments  with  in- 
dignation and  regret.  A  successful  faction  might  erect 
a  tyranny  on  the  ruins  of  order  and  law  ;  while  no  suc- 
cour could  be  constitutionally  afforded  by  the  Union  tp 
the  friends  and  supporters  of  the  government.  But 
this  is  not  all.  The  destruction  of  the  national  govern- 
ment itself,  or  of  neighbouring  states,  might  result  from 
a  successful  rebeUion  in  a  single  state.  Who  can  de- 
termine, what  would  have  been  the  issue,  if  the  in- 
surrection in  Massachusetts,  in  1787,  had  been  success- 


678  CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 

cessful,  and  the  malecontents  had  been  headed  by  a 
Caesar  or  a  Cromwell  1  If  a  despotic  or  monarchical 
government  were  established  in  one  state,  it  would 
bring  on  the  ruin  of  the  whole  repubHc.  Montesquieu 
has  acutely  remarked,  that  confederated  governments 
should  be  formed  only  between  states,  whose  form  of 
government  is  not  only  similar,  but  also  republican. 

^  955.  The  fifth  article  of  the  constitution  respects 
the  mode  of  making  amendments  to  it.  It  is  in  these 
words  :  '*  The  congress,  whenever  two  thirds  of  both 
"  houses  shall  deem  it  necessary,  shall  propose  amend- 
*'  ments  to  this  constitution,  or,  on  the  application  of 
"  the  legislatures  of  two  thirds  of  the  several  states, 
"shall  call  a  convention  for  proposing  amendments, 
"  which,  in  either  case,  shall  be  valid  to  all  intents  and 
"purposes,  as  part  of  this  constitution,  when  ratified 
"by  the  legislatures  of  three  fourths  of  the  several 
"  states,  or  by  conventions  in  three  fourths  thereof,  as 
"  the  one  or  the  other  mode  of  ratification  may  be  pro- 
" posed  by  the  congress;  provided,  that  no  amendment, 
"  which  may  be  made  prior  to  the  year  one  thousand 
"  eight  hundred  and  eight,  shall  in  any  manner  affect 
"  the  first  and  fourth  clauses  in  the  ninth  section  of 
"  the  first  article ;  and  that  no  state,  without  its  con- 
"  sent,  shall  be  deprived  of  its  equal  suffrage  in  the 
"  senate." 

^  956.  Upon  this  subject  little  need  be  said  to 
persuade  us,  at  once,  of  its  utility  and  importance.  It 
is  obvious,  that  no  human  government  can  ever  be 
perfect ;  and  that  it  is  impossible  to  foresee,  or  guard 
against  all  the  exigencies,  which  may,  in  different  ages, 
require  different  adaptations  and  modifications  of  pow- 
ers to  suit  the  various  necessities  of  the  people.  A 
government,  forever  changing  and  changeable,  is,  in- 


CH.  XLI.]  MODE  OF  AMENDMENTS.  679 

deed,  in  a  wState  bordering  upon  anarchy  and  confusion. 
A  government,  which,  in  its  own  organization,  provides 
no  means  of  change,  but  assumes  to  be  fixed  and  un- 
alterable, must,  after  a  while,  become  wholly  unsuited 
to  the  circumstances  of  the  nation ;  and  it  will  either 
degenerate  into  a  despotism,  or  by  the  pressure  of  its 
inequalities  bring  on  a  revolution.  It  is  wise,  there- 
fore, in  every  government,  and  especially  in  a  republic, 
to  provide  means  for  altering,  and  improving  the  fabric 
of  government,  as  time  and  experience,  or  the  new 
phases  of  human  affairs,  may  render  proper,  in  order  to 
promote  the  happiness  and  safety  of  the  people.  The 
great  principle  to  be  sought  is  to  make  the  changes  prac- 
ticable, but  not  too  easy ;  to  secure  due  deliberation,  and 
caution  ;  and  to  follow  experience,  rather  than  to  open 
a  way  for  experiments,  suggested  by  mere  speculation 
or  theory. 

^  957.  In  regard  to  the  constitution  of  the  United 
States,  it  is  confessedly  a  new  experiment  in  the  his- 
tory of  nations.  Its  framers  were  not  bold  or  rash 
enough  to  believe,  or  to  pronounce  it  to  be  perfect. 
They  made  use  of  the  best  lights,  which  they  possess- 
ed, to  form  and  adjust  its  parts,  and  mould  its  mate- 
rials. But  they  knew,  that  time  might  develope  many 
defects  in  its  arrangements,  and  many  deficiencies  in 
its  powers.  They  desired,  that  it  might  be  open  to 
improvement;  and  under  the  guidance  of  the  sober 
judgment  and  enlightened  skill  of  the  country,  to  be 
perpetually  approaching  nearer  and  nearer  to  perfec- 
tion. It  was  obvious,  too,  that  the  means  of  amend- 
ment might  avert,  or  at  least  have  a  tendency  to  avert, 
the  most  serious  perils,  to  which  confederated  republics 
are  liable,  and  by  which  all  of  them  have  hitherto  been 
shipwrecked.     They  knew,  that  the  besetting  sin  of 


680  CONSTITUTION  OF  THE  U.  STATES.      [bOOK   III. 

republics  is  a  restlessness  of  temperament,  and  a  spirit 
of  discontent  at  slight  evils.  They  knew  the  pride  and 
jealousy  of  state  power  in  confederacies ;  and  they 
wished  to  disarm  them  of  their  potency,  by  providing 
a  safe  means  to  break  the  force,  if  not  wholly  to  ward 
off  the  blows,  which  would,  from  time  to  time,  under 
the  garb  of  patriotism,  or  a  love  of  the  people,  be  aimed 
at  the  constitution.  They  believed,  that  the  power  of 
amendment  was,  if  one  may  so  say,  the  safety  valve  to 
let  off  all  temporary  effervescences  and  excitements  ; 
and  the  real  effective  instrument  to  control  and  adjust 
the  movements  of  the  machinery,  when  out  of  order, 
or  in  danger  of  self-destruction. 

§  958.  Upon  the  propriety  of  the  power,  in  some 
form,  there  will  probably  be  little  controversy.  The 
only  question  is,  whether  it  is  so  arranged,  as  to  accom- 
plish its  objects  in  the  safest  mode  ;  safest  for  the  sta- 
bility of  the  government ;  and  safest  for  the  rights  and 
liberties  of  the  people. 

§  959.  Two  modes  are  pointed  out,  the  one  at  the 
instance  of  the  government  itself,  through  the  instru- 
mentality of  congress ;  the  other,  at  the  instance  of  the 
states,  through  the  instrumentality  of  a  convention. 
Congress,  whenever  two  thirds  of  each  house  shall 
concur  in  the  expediency  of  an  amendment,  may  pro- 
pose it  for  adoption.  The  legislatures  of  two  thirds 
of  the  states  may  require  a  convention  to  be  called,  for 
the  purpose  of  proposing  amendments.  In  each  case, 
three  fourths  of  the  states,  either  through  their  legisla- 
tures, or  conventions,  called  for  the  purpose,  must 
concur  in  every  amendment,  before  it  becomes  a  part 
of  the  constitution.  That  this  mode  of  obtaining 
amendments  is  practicable,  is  abundantly  demonstrated 
by  our  past  experience  in  the  only  mode  hitherto  found 


CH.  XLI.]  MODE  OF  AMENDMENTS.  681 

necessary,  that  of  amendments  proposed  by  congress. 
In  this  mode  twelve  amendments  have  already  been 
incorporated  into  the  constitution.  The  guards,  too, 
against  the  too  hasty  exercise  of  the  power,  under 
temporary  discontents  or  excitements,  are  apparently 
sufficient.  Two  thirds  of  congress,  or  of  the  legisla- 
tures of  the  states,  must  concur  in  proposing,  or  requir- 
ing amendments  to  be  proposed  ;  and  three  fourths  of 
the  states  must  ratify  them.  Time  is  thus  allowed, 
and  ample  time,  for  deliberation,  both  in  proposing  and 
ratifying  amendments.  They  cannot  be  carried  by 
surprise,  or  intrigue,  or  artifice.  Indeed,  years  may 
elapse  before  a  deliberate  judgment  may  be  passed 
upon  them,  unless  some  pressing  emergency  calls  for 
instant  action.  An  amendment,  which  has  the  delib- 
erate judgment  of  two-thirds  of  congress,  and  of  three 
fourths  of  the  states,  can  scarcely  be  deemed  unsuited 
to  the  prosperity,  or  security  of  the  republic.  It  must 
combine  as  much  wisdom  and  experience  in  its  favour, 
as  ordinarily  can  belong  to  the  management  of  any 
human  concerns.  In  England  the  supreme  power  of 
the  nation  resides  in  parliament ;  and,  in  a  legal  sense, 
it  is  so  omnipotent,  that  it  has  authority  to  change  the 
whole  structure  of  the  constitution,  without  resort  to 
any  confirmation  of  the  people.  There  is,  indeed,  little 
danger,  that  it  will  so  do,  as  long  as  the  people  are 
fairly  represented  in  it.  But  still  it  does,  theoretically 
speaking,  possess  the  power ;  and  it  has  actually  exer- 
cised it  so  far,  as  to  change  the  succession  to  the  crown, 
and  mould  to  its  will  some  portions  of  the  internal 
structure  of  the  constitution. 

^  960.  Upon  the  subject  of  the  national  constitu- 
tion, we  may  adopt  without  hesitation  the  language  of 
a  learned  commentator.     "Nor,"  says  he,  "can  we 

Abr.  86 


682         CONSTITUTION  OF  THE  U.  STATES.        [bOOK  III. 

too  much  applaud  a  constitution,  which  thus  provides 
a  safe  and  peaceable  remedy  for  its  own  defects,  as 
they  may,  from  time  to  time,  be  discovered.  A  change 
of  government  in  other  countries  is  almost  always  at- 
tended with  convulsions,  which  threaten  its  entire  dis- 
solution ;  and  with  scenes  of  horror,  which  deter 
mankind  from  every  attempt  to  correct  abuses,  or  re- 
move oppressions,  until  they  have  become  altogether 
intolerable.  In  America  we  may  reasonably  hope,  that 
neither  of  these  evils  need  be  apprehended.  Nor  is 
there  any  reason  to  fear,  that  this  provision  in  the 
constitution  will  produce  any  instability  in  the  govern- 
ment. The  mode,  both  of  originating  and  ratifying 
amendments,  (in  either  mode,  which  the  constitution 
directs,)  must  necessarily  be  attended  with  such  obsta- 
cles and  delays,  as  must  prove  a  sufficient  bar  against 
light  or  frequent  innovations.  And,  as  a  further  secu- 
rity against  them,  the  same  article  further  provides, 
that  no  amendment,  which  may  be  made  prior  to  the 
year  1808,  shall,  in  any  manner  affect  those  clauses  of 
the  ninth  section  of  the  first  article,  which  relate  to  the 
migration  or  importation  of  such  persons,  as  the  states 
may  think  proper  to  allow ;  and  to  the  manner,  in 
which  direct  taxes  shall  be  laid;  and  that  no  state 
shall,  without  its  consent,  be  deprived  of  its  equal  suf- 
frage in  the  senate." 


CH.  XLII.]  PUBLIC  DEBTS.  683 


CHAPTER  XLII. 

PUBLIC  DEBTS SUPREMACY  OF  CONSTITUTION 

AND  LAWS. 

^961.  The  next  clause  of  the  sixth  article  of  the 
constitution  is :  "  All  debts  contracted,  and  engage- 
"  ments  entered  into  before  the  adoption  of  this  consti- 
"tution,  shall  be  as  valid  against  the  United  States, 
"  under  this  constitution,  as  under  the  confederation." 

§  962.  This  can  be  considered  in  no  other  light, 
than  as  a  declaratory  proposition,  resulting  from  the 
law  of  nations,  and  the  moral  obligations  of  society. 
Nothing  is  more  clear  upon  reason  or  general  law, 
than  the  doctrine,  that  revolutions  in  government  have, 
or  rather  ought  to  have,  no  effect  whatsoever  upon 
private  rights,  and  contracts,  or  upon  the  public  obliga- 
tions of  nations.  It  results  from  the  first  principles  of 
moral  duty,  and  responsibility j^  deducible  from  the  law 
of  nature,  and  applied  to  the  intercourse  and  social 
relations  of  nations.  A  change  in  the  political  form  of 
a  society  ought  to  have  no  power  to  produce  a  dissolu- 
tion of  any  of  its  moral  obligations. 

^  963.  This  declaration  was  probably  inserted  in 
the  constitution,  not  only  as  a  solemn  recognition  of 
the  obligations  of  the  government  resulting  from  na- 
tional law  ;  but  for  the  more  complete  satisfaction  and 
security  of  the  public  creditors,  foreign  as  well  as  do- 
mestic. The  articles  of  confederation  contained  a 
similar  stipulation  in  respect  to  the  bills  of  credit  emit- 
ted, monies  borrowed,  and  debts  contracted,  by  or  un- 
der the  authority  of  congress,  before  the  ratification  of 
the  confederation. 


684     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

^  964.  The  next  clause  is,  "This  constitution, 
"  and  the  laws  of  the  United  States,  which  shall  be 
"  made  in  pursuance  thereof,  and  all  treaties  made,  or 
"  which  shall  be  made,  under  the  authority  of  the  United 
"  States,  shall  be  the  supreme  law  of  the  land.  And 
"  the  judges  in  every  state  shall  be  bound  thereby,  any 
"  thing  in  the  constitution  or  laws  of  any  state  to  the 
"  contrary  notwithstanding." 

^  965.  The  propriety  of  this  clause  would  seem  to 
result  from  the  very  nature  of  the  constitution.  If  it 
was  to  establish  a  national  government,  that  govern- 
ment ought,  to  the  extent  of  its  powers  and  rights,  to  be 
supreme.  It  would  be  a  perfect  solecism  to  affirm,  that, 
a  national  government  should  exist  with  certain  powers ; 
and  yet,  that  in  the  exercise  of  those  powers  it  should 
not  be  supreme.  What  other  inference  could  have 
been  drawn,  than  of  their  supremacy,  if  the  constitution 
had  been  totally  silent  1  And  surely  a  positive  affirm- 
ance of  that,  which  is  necessarily  implied,  cannot  in  a 
case  of  such  vital  importance  be  deemed  unimportant. 
The  very  circumstance,  that  a  question  might  be  made, 
would  irresistibly  lead  to  the  conclusion,  that  it  ought 
not  to  be  left  to  inference.  A  law,  by  the  very 
meaning  of  the  term,  includes  supremacy.  It  is  a  rule, 
which  those,  to  whom  it  is  prescribed,  are  bound  to 
observe.  This  results  from  every  political  association. 
If  individuals  enter  into  a  state  of  society,  the  laws  of 
that  society  must  be  the  supreme  regulator  of  their 
conduct.  If  a  number  of  political  societies  enter  into  a 
larger  poUtical  society,  the  laws,  which  the  latter  may 
enact,  pursuant  to  the  powers  entrusted  to  it  by  its 
consdtution,  must  necessarily  be  supreme  over  those 
societies,  and  the  individuals,  of  whom  they  are  com- 
posed.    It  would  otherwise  be  a  mere  treaty,  depend- 


CH.  XLII.]  SUPREMACY  OF  LAWS.  685 

ent  upon  the  good  faith  of  the  parties,  and  not  a  gov- 
ernment, which  is  only  another  name  for  political  power 
and  supremacy.  But  it  will  not  follow,  that  acts  of  the 
larger  society,  which  are  not  pursuant  to  its  constitu- 
tional powers,  but  which  are  invasions  of  the  residuary 
authorities  of  the  smaller  societies,  will  become  the 
supreme  law  of  the  land.  They  will  be  merely  acts  of 
usurpation,  and  will  deserve  to  be  treated  as  such. 
Hence  we  perceive,  that  the  above  clause  only  de- 
clares a  truth,  which  flows  immediately  and  necessarily 
from  the  institution  of  a  national  government.  It 
will  be  observed,  that  the  supremacy  of  the  laws  is 
attached  to  those  only,  which  are  made  in  pursuance  of 
the  constitution ;  a  caution  very  proper  in  itself,  but  in 
fact  the  limitation  would  have  arisen  by  irrisistible  im- 
plication, if  it  had  not  been  expressed. 

§  966.  In  regard  to  treaties,  there  is  equal  rea- 
son, why  they  should  be  held,  when  made,  to  be  the 
supreme  law  of  the  land.  It  is  to  be  considered,  that 
treaties  constitute  solemn  compacts  of  binding  obliga- 
tion among  nations ;  and  unless  they  are  scrupulously 
obeyed,  and  enforced,  no  foreign  nation  would  consent 
to  negotiate  with  us ;  or  if  it  did,  any  want  of  strict 
fidelity  on  our  part  in  the  discharge  of  the  treaty  stip- 
ulations would  be  visited  by  reprisals,  or  war.  It  is, 
therefore,  indispensable,  that  they  should  have  the  obU- 
gation  and  force  of  a  law,  that  they  may  be  executed 
by  the  judicial  power,  and  be  obeyed  like  other  laws. 
This  will  not  prevent  them  from  being  cancelled  or 
abrogated  by  the  nation  upon  grave  and  suitable  occa- 
sions; for  it  will  not  be  disputed,  that  they  are  subject 
to  the  legislative  power,  and  may  be  repealed,  like  other 
laws,  at  its  pleasure ;  or  they  may  be  varied  by  new 
treaties.     Still,  while  they  do  subsist,  they  ought  to 


686  CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 

have  a  positive  binding  efficacy,  as  laws,  upon  all  the 
states,  and  all  the  citizens  of  the  states.  The  peace  of 
the  nation,  and  its  good  faith,  and  moral  dignity,  indis- 
pensably require,  that  all  state  laws  should  be  subject- 
ed to  their  supremacy.  The  difference  between  con- 
sidering them  as  laws,  and  considering  them  as  exe- 
cutory, or  executed  contracts,  is  exceedingly  impor- 
tant in  the  actual  administration  of  public  justice.  If 
they  are  supreme  laws,  courts  of  justice  will  enforce 
them  directly  in  all  cases,  to  which  they  can  be  judi- 
cially applied,  in  opposition  to  all  state  laws,  as  we  all 
know  was  done  in  the  case  of  the  British  debts  secured 
by  the  treaty  of  1 783,  after  the  constitution  was  adopt- 
ed. If  they  are  deemed  but  solemn  compacts,  prom- 
issory in  their  nature  and  obligation,  courts  of  justice 
may  be  embarrassed  in  enforcing  them,  and  may  be 
compelled  to  leave  the  redress  to  be  administered 
through  other  departments  of  the  government.  It  is 
notorious,  that  treaty  stipulations  (especially  those  of 
the  treaty  of  peace  of  1783)  were  grossly  disregarded 
by  the  states  under  the  confederation.  They  were 
deemed  by  the  states,  not  as  laws,  but  like  requisitions, 
of  mere  moral  obligation,  and  dependent  upon  the  good 
will  of  the  states  for  their  execution.  Congress,  indeed, 
remonstrated  against  this  construction,  as  unfounded  in 
principle  and  justice.  But  their  voice  was  not  heard. 
Power  and  right  were  separated ;  the  argument  was 
all  on  one  side ;  but  the  power  was  on  the  other,  ft 
was  probably  to  obviate  this  very  difficulty,  that  this 
clause  was  inserted  in  the  constitution ;  and  it  would 
redound  to  the  immortal  honour  of  its  authors,  if  it  had 
done  no  more,  than  thus  to  bring  treaties  within  the 
sanctuary  of  justice,  as  laws  of  supreme  obligation. 
There  are,  indeed,  still  cases,  in  which  courts  of  justice 


CH.  XLII.]  SUPREMACY  OF  LAWS.  687 

can  administer  no  effectual  redress;  for  when  the  terms 
of  a  stipulation  import  a  contract,  as  when  either  of  the 
parties  engages  to  perform  a  particular  act,  the  treaty 
addresses  itself  to  the  political,  and  not  to  the  judicial, 
department ;  and  the  legislature  must  execute  the  con- 
tract, before  it  can  become  a  rule  for  the  courts. 

§  967.  From  this  supremacy  of  the  constitution 
and  laws  and  treaties  of  the  United  States,  within 
their  constitutional  scope,  arises  the  duty  of  courts  of 
justice  to  declare  any  unconstitutional  law,  passed  by 
congress,  or  by  a  state  legislature,  void.  So,  in  like 
manner,  the  same  duty  arises,  whenever  any  other 
department  of  the  national  or  state  governments  ex- 
ceeds its  constitutional  functions.  But  the  judiciary 
of  the  United  States  has  no  general  jurisdiction  to 
declare  acts  of  the  several  states  void,  unless  they 
are  repugnant  to  the  constitution  of  the  United  States, 
notwithstanding  they  are  repugnant  to  the  state  con- 
stitution. Such  a  power  belongs  to  it  only,  when  it 
sits  to  administer  the  local  law  of  a  state,  and  acts 
exactly,  as  the  state  tribunal  is  bound  to  act.  But 
upon  this  subject  it  seems  unnecessary  to  dwell,  since 
the  right  of  all  courts,  state  as  well  as  national,  to 
declare  unconstitutional  laws  void,  is  now  settled  be- 
yond the  reach  of  judicial  controversy. 


688    CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 


CHAPTER  XLIII. 

OATHS  OF  OFFICE RELIGIOUS    TEST  —  RATIFICA- 
TION OF  CONSTITUTION. 

§  968.  The  next  clause  is,  "The  senators  and 
"  representatives  before  mentioned,  and  the  members 
"of  the  several  state  legislatures  and  all  executive 
"  and  judicial  officers,  both  of  the  United  States  and 
"of  the  several  states,  shall  be  bound  by  oath  or 
"affirmation  to  support  the  constitution.  But  no 
"religious  test  shall  ever  be  required  as  a  qualifica- 
"  tion  to  any  office  or  public  trust  under  the  United 
"  States." 

§  969.  That  all  those,  who  are  entrusted  v^ith  the 
execution  of  the  powers  of  the  national  government, 
should  be  bound  by  some  solemn  obligation  to  the 
due  execution  of  the  trusts  reposed  in  them,  and  to 
support  the  constitution,  would  seem  to  be  a  proposi- 
tion too  clear  to  render  any  reasoning  necessary  in 
support  of  it.  It  results  from  the  plain  right  of  society 
to  require  some  guaranty  from  every  officer,  that  he  will 
be  conscientious  in  the  discharge  of  his  duty.  Oaths 
have  a  solemn  obligation  upon  the  minds  of  all  re- 
flecting men,  and  especially  upon  those,  who  feel  a 
deep  sense  of  accountability  to  a  Supreme  being.  If, 
in  the  ordinary  administration  of  justice  in  cases  of 
private  rights,  or  personal  claims,  oaths  are  required  of 
those,  who  try,  as  well  as  of  those,  who  give  testimony, 
to  guard  against  malice,  falsehood,  and  evasion,  surely 
like  guards  ought  to  be  interposed  in  the  administra- 
tion of  high  public  trusts,  and  especially  m  such,  as 


CH.  XLIII.]  OATH  OF  OFFICE.  689 

may  concern  the  welfare  and  safety  of  the  whole  com- 
munity. But  there  are  known  denominations  of  men, 
who  are  conscientiously  scrupulous  of  taking  oaths 
(among  which  is  that  pure  and  distinguished  sect  of 
Christians,  commonly  called  Friends,  or  Quakers,) 
and  therefore,  to  prevent  any  unjustifiable  exclusion 
from  office,  the  constitution  has  permitted  a  solemn 
affirmation  to  be  made  instead  of  an  oath,  and  as  its 
equivalent. 

^  970.  But  it  may  not  appear  to  all  persons  quite 
so  clear,  why  the  officers  of  the  state  governments 
should  be  equally  bound  to  take  a  like  oath,  or  affir- 
mation ;  and  it  has  been  even  suggested,  that  there 
is  no  more  reason  to  require  that,  than  to  require, 
that  all  of  the  United  States  officers  should  take  an 
oath  or  affirmation  to  support  the  state  constitutions. 
A  moment's  reflection  will  show  sufficient  reasons  for 
the  requisition  of  it  in  the  one  case,  and  the  omission 
of  it  in  the  other.  The  members  and  officers  of  the 
national  government  have  no  agency  in  carrying  into 
effect  the  state  constitutions.  The  members  and 
officers  of  the  state  governments  have  an  essential 
agency  in  giving  effect  to  the  national  constitution. 
The  election  of  the  president  and  the  senate  will  de- 
pend, in  all  cases,  upon  the  legislatures  of  the  several 
states ;  and,  in  many  cases,  the  election  of  the  house 
of  representatives  may  be  affected  by  their  agency. 
The  judges  of  the  state  courts  will  frequently  be  called 
upon  to  decide  upon  the  constitution,  and  laws,  and 
treaties  of  the  United  States;  and  upon  rights  and  claims 
growing  out  of  them.  Decisions  ought  to  be,  as  far  as 
possible,  uniform ;  and  uniformity  of  obligation  will 
greatly  tend  to  such  a  result.  The  executive  authority 
of  the  several  states  may  be  often  called  upon  to  exert 

Abr.  87 


690     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  Ilf. 

powers,  or  allow  rights,  given  by  the  constitution,  as 
in  filling  vacancies  in  the  senate,  during  the  recess  of 
the  legislature ;  in  issuing  writs  of  election  to  fill  vacan- 
cies in  the  house  of  representatives ;  in  officering  the 
militia,  and  giving  effect  to  laws  for  calling  them ;  and 
in  the  surrender  of  fugitives  from  justice.  These,  and 
many  other  functions,  devolving  on  the  state  authorities, 
render  it  highly  important,  that  they  should  be  under  a 
solemn  obligation  to  obey  the  constitution.  In  common 
sense,  there  can  be  no  well-founded  objection  to  it. 
There  may  be  serious  evils  growing  out  of  an  opposite 
course. 

^  971,  The  remaining  part  of  the  clause  declares, 
that  "no  religious  test  shall  ever  be  required,  as  a 
"  qualification  to  any  office  or  public  trust,  under  the 
"  United  States."  This  clause  is  not  introduced 
merely  for  the  purpose  of  satisfying  the  scruples  of 
many  respectable  persons,  w^ho  feel  an  invincible  re- 
pugnance to  any  religious  test,  or  affirmation.  It  had 
a  higher  object ;  to  cut  off  for  ever  every  pretence  of 
any  alliance  between  church  and  state  in  the  national 
government.  The  framers  of  the  constitution  were 
fuUv  sensible  of  the  dan^-ers  from  this  source,  marked 
out  in  the  history  of  other  ages  and  countries ;  and 
not  wholly  unknown  to  our  own.  They  knew,  that 
bigotry  was  unceasingly  vigilant  in  its  stratagems,  to 
secure  to  itself  an  exclusive  ascendency  over  the 
human  mind ;  and  that  intolerance  was  ever  ready 
to  arm  itself  v/ith  all  the  terrors  of  the  civil  power  to 
exterminate  those,  who  doubted  its  dogmas,  or  resist- 
ed its  infallibility.  The  Catholic  and  the  Protestant 
had  alternately  waged  the  most  ferocious  and  unre- 
lenting warfare  on  each  other ;  and  Protestantism 
itself,  at  the  very  moment,  when  it  was   proclaiming 


CH.  XLIII.]    RATIFICATION  OF  CONSTITUTION.  691 

the  right  of  private  judgment,  prescribed  boundaries 
to  that  right,  beyond  which  if  any  one  dared  to  pass, 
he  must  seal  his  rashness  with  the  blood  of  martyr- 
dom. The  history  of  the  parent  country,  too,  could 
not  fail  to  instruct  them  in  the  uses,  and  the  abuses  of 
religious  tests.  They  there  found  the  pains  and 
penalties  of  non-conformity  written  in  no  equivocal 
language,  and  enforced  with  a  stern  and  vindictive 
jealousy. 

§  972.  Of  the  English  laws  respecting  papists, 
Montesquieu  observes,  that  they  are  so  rigorous, 
though  not  professedly  •  of  the  sanguinary  kind,  that 
they  do  all  the  hurt,  that  can  possibly  be  done  in  cold 
blood.  To  this  just  rebuke,  (after  citing  it,  and  admit- 
ting its  truth,)  Mr.  Justice  Blackstone  has  no  better  re- 
ply to  make,  than  that  these  laws  are  seldom  exerted 
to  their  utmost  rigour ;  and,  indeed,  if  they  were,  it 
would  be  very  difficult  to  excuse  them.  The  meanest 
apologist  of  the  worst  enormities  of  a  Roman  emperor 
could  not  have  shadowed  out  a  defence  more  ser- 
vile, or  more  unworthy  of  the  dignity  and  spirit  of  a 
freeman.  It  was  easy  to  foresee,  that  without  some  pro- 
hibition of  religious  tests,  a  successful  sect,  in  our 
country,  might,  by  once  possessing  power,  pass  test- 
laws,  which  would  secure  to  themselves  a  monopoly  of 
all  the  offices  of  trust  and  profit,  under  the  national 
government. 

^973.  The  seventh  and  last  article  of  the  con- 
stitution is:  "The  ratification  of  the  conventions  of 
"  nine  states  shall  be  sufficient  for  the  establishment 
"  of  this  constitution  between  the  states  so  ratifying 
"  the  same." 

^  974.  Upon  this  article  it  is  now  wholly  un- 
necessary  to  bestow   much    commentary,   since  the 


692        CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

constitution  has  been  ratified  by  all  the  states.  If  a 
ratification  had  been  required  of  all  the  states,  instead 
of  nine,  as  a  condition  precedent,  to  give  it  life  and 
motion,  it  is  now  known,  that  it  would  never  have 
been  ratified.  North  Carolina  in  her  first  conven- 
tion rejected  it ;  and  Rhode-Island  did  not  accede  to 
it,  until  more  than  a  year  after  it  had  been  in  operation. 
§  975.  And  here  closes  our  review  of  the  consti- 
tution in  the  original  form,  in  which  it  was  framed  for, 
and  adopted  by,  the  people  of  the  United  States.  The 
concluding  passage  of  it  is,  "  Done  in  convention  by 
the  unanimous  consent  of  all  the  states  present,  the 
seventeenth  day  of  September,  in  the  year  of  our  Lord 
one  thousand  seven  hundred  and  eighty-seven,  and  of 
the  Independence  of  the  United  States  of  America, 
the  twelfth."  At  the  head  of  the  illustrious  men,  who 
framed,  and  signed  it,  (men,  who  have  earned  the 
eternal  gratitude  of  their  country,)  stands  the  name  of 
George  Washington,  "  President  and  Deputy  from 
Virginia ; "  a  name,  at  the  utterance  of  which  envy  is 
dumb,  and  pride  bows  with  involuntary  reverence,  and 
piety,  with  eyes  lifted  to  heaven,  breathes  forth  a  prayer 
of  profound  gratitude. 


CH.  XLIV.]    AMENDMENTS BILL  OF  RIGHTS.  693 

CHAPTER  XLIV. 

AMENDMENTS  TO  THE  CONSTITUTION. 

§  976.  We  have  already  had  occasion  to  take  no- 
tice of  some  of  the  amendments  made  to  the  consti- 
tution, subsequent  to  its  adoption,  in  the  progress  of 
our  review  of  the  provisions  of  the  original  instrument. 
The  present  chapter  w^ill  be  devoted  to  a  consideration 
of  those,  which  have  not  fallen  within  the  scope  of  our 
former  commentaries. 

^  977.  It  has  been  already  stated,  that  many  ob- 
jections were  taken  to  the  constitution,  not  only  on 
account  of  its  actual  provisions,  but  also  on  account 
of  its  deficiencies  and  omissions.  Among  the  latter, 
none  were  proclaimed  with  more  zeal,  and  pressed 
with  more  effect,  than  the  want  of  a  bill  of  rights. 
This,  it  was  said,  was  a  fatal  defect ;  and  suifiicient  of 
itself  to  bring  on  the  ruin  of  the  republic.  To  this 
objection  several  answers  were  given ;  first,  that  the 
constitution  did  in  fact  contain  many  provisions  in  the 
nature  of  a  bill  of  rights,  if  the  whole  constitution 
was  not  in  fact  a  bill  of  rights ;  secondly,  that  a  bill 
of  rights  was  in  its  nature  more  adapted  to  a  monar- 
chy, than  to  a  government,  professedly  founded  upon 
the  will  of  the  people,  and  executed  by  their  immedi- 
ate representatives  and  agents ;  and,  thirdly,  that  a 
formal  bill  of  rights,  beyond  what  was  contained  in  it, 
was  wholly  unnecessary,  and  might  even  be  dan- 
gerous. 

^  978.  It  was  further  added,  that  in  truth  the  con- 
stitution itself  was,  in  every  rational  sense,  and  to 
every  useful  purpose,  a  bill  of  rights   for   the   Union. 


694  CONSTITUTIOIV  OF  THE  U.  STATES.     [bOOK  III. 

It  specifies,  and  declares  the  political  privileges  of  the 
citizens  in  the  structure  and  administration  of  the 
government.  It  defines  certain  immunities  and  modes 
of  proceeding,  which  relate  to  their  personal,  private, 
and  public  rights  and  concerns.  It  confers  on  them 
the  unalienable  right  of  electing  their  rulers;  and 
prohibits  any  tyrannical  measures,  and  vindictive  pros- 
ecutions. So,  that,  at  best,  much  of  the  force  of  the 
objection  rests  on  mere  nominal  distinctions,  or  upon  a 
desire  to  make  a  frame  of  government  a  code  to  regu- 
late rights  and  remedies. 

^  979.  Although  it  must  be  conceded,  that  there  is 
much  intrinsic  force  in  this  reasoning,  it  cannot  in 
candour  be  admitted  to  be  wholly  satisfactory,  or 
conclusive  on  the  subject.  It  is  rather  the  argument 
of  an  able  advocate,  than  the  reasoning  of  a  constitu- 
tional statesman.  In  the  first  place,  a  bill  of  rights 
(in  the  very  sense  of  this  reasoning)  is  admitted  in 
some  cases  to  be  important ;  and  the  constitution  it- 
self adopts,  and  estabhshes  its  propriety  to  the  ex- 
tent of  its  actual  provisions.  Every  reason,  which 
establishes  the  propriety  of  any  provision  of  this  sort 
in  the  constitution,  such  as  a  right  of  trial  by  jury  in 
criminal  cases,  is,"  pro  tantOy  proof,  that  it  is  neither 
unnecessary  nor  dangerous.  It  reduces  the  question 
to  the  consideration,  not  whether  any  bill  of  rights  is 
necessary,  but  what  such  a  bill  of  rights  should  pro- 
perly contain.  This  is  a  point  for  argument,  upon 
which  different  minds  may  arrive  at  different  conclu- 
sions. That  a  bill  of  rights  may  contain  too  many 
enumerations,  and  especially  such,  as  more  correctly 
belong  to  the  ordinary  legislation  of  a  government, 
cannot  be  doubted.  Some  of  our  state  bills  of  right 
contain   clauses  of  this   description,   being   either  in 


CH.  XLIV.]    AMENDMENTS BILL  OF  RIGHTS.  695 

their  character  and  phraseology  quite  too  loose,  and 
general,  and  ambiguous ;  or  covering  doctrines  quite 
debateable,  both  in  theory  and  practice  ;  or  even  lead- 
ing to  mischievous  consequences,  by  restricting  the 
legislative  power  under  circumstances,  v^hich  were  not 
foreseen,  and  if  foreseen,  the  restraint  would  have  been 
pronounced  by  all  persons  inexpedient,  and  perhaps 
unjust.  Indeed,  the  rage  of  theorists  to  make  con- 
stitutions a  vehicle  for  the  conveyance  of  their  own 
crude,  and  visionary  aphorisms  of  government,  requires 
to  be  guarded  against  with  the  most  unceasing  vigi- 
lance. 

^  980.  In  the  next  place,  a  bill  of  rights  is  impor- 
tant, and  may  often  be  indispensable,  whenever  it  op- 
erates, as  a  qualification  upon  powers,  actually  granted 
by  the  people  to  the  government.  This  is  the  real 
ground  of  all  the  bills  of  rights  in  the  parent  country, 
in  the  colonial  constitutions  and  laws,  and  in  the  state 
constitutions.  In  England,  the  bills  of  rights  were 
not  demanded  merely  of  the  crown,  as  withdrawing 
power  from  the  royal  prerogative  ;  they  were  equally 
important,  as  withdrawing  power  from  parliament. 
A  large  proportion  of  the  most  valuable  of  the  pro- 
visions in  Magna  Charta,  and  the  bill  of  rights  of 
1688,  consists  of  a  solemn  recognition  of  limitations 
upon  the  power  of  parliament ;  that  is,  a  declaration, 
that  parliament  ou^ht  not  to  abolish,"  or  restrict  those 
rights.  Such  are  the  right  of  trial  by  jury  ;  the  right 
to  personal  liberty  and  private  property  according  to 
the  law  of  the  land ;  that  the  subjects  ought  to  have 
a  right  to  bear  arms ;  that  elections  of  members  of 
parliament  ought  to  be  free ;  that  freedom  of  speech 
and  debate  in  parliament  ought  not  to  be  impeached, 
or   questioned   elsewhere;    and     that   excessive   bail 


696     CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

ought  not  to  be  required,  nor  excessive  fines  imposed, 
nor  cruel  or  unusual  punishments  inflicted.  When- 
ever, then,  a  general  power  exists,  or  is  granted  to  a 
government,  which  may  in  its  actual  exercise  or  abuse 
be  dangerous  to  the  people,  there  seems  a  peculiar 
propriety  in  restricting  its  operations,  and  in  excepting 
from  it  some  at  least  of  the  most  mischievous  forms,  in 
which  it  may  be  likely  to  be  abused.  And  the  very  ex- 
ception in  such  cases  will  operate  with  a  silent,  but  ir- 
resistible influence  to  control  the  actual  abuse  of  it  in 
other  analogous  cases. 

^  981.  In  the  next  place,  a  bill  of  rights  may  be 
important,  even  when  it  goes  beyond  powers  suppos- 
ed to  be  granted.  It  is  not  always  possible  to  fore- 
see the  extent  of  the  actual  reach  of  certain  powers, 
which  are  given  in  general  terms.  They  may  be 
construed  to  extend  (and  perhaps  fairly)  to  certain 
classes  of  cases,  which  did  not  at  first  appear  to  be 
within  them.  A  bill  of  rights,  then,  operates,  as  a 
guard  upon  any  extravagant  or  undue  extention  of 
such  powers.  Besides ;  (as  has  been  justly  remark- 
ed,) a  bill  of  rights  is  of  real  efliciency  in  controlling 
the  excesses  of  party  spirit.  It  serves  to  guide,  and 
enlighten  public  opinion,  and  to  render  it  more  quick 
to  detect,  and  more  resolute  to  resist,  attempts  to 
disturb  private  rights.  It  requires  more  than  ordi- 
nary hardihood  and  audacity  of  character,  to  trample 
do\^^n  principles,  which  our  ancestors  have  consecrated 
with  reverence  ;  which  we  have  imbibed  in  our  early 
education  ;  which  recommend  themselves  to  the  judg- 
ment of  the  world  by  their  truth  and  simplicity ;  and 
which  are  constantly  placed  before  the  eyes  of  the 
people,  accompanied  with  the  imposing  force  and 
solemnity  of  a  constitutional  sanction.     Bills  of  rights 


CH.  XLIV.]    AMENDMENTS BILL  OF  RIGHTS.  697 

are  a  part  of  the  muniments  of  freemen,  showing  their 
title  to  protection ;  and  they  become  of  increased 
value,  when  placed  under  the  protection  of  an  inde- 
pendent judiciary  instituted,  as  the  appropriate  guar- 
dian of  the  public  and  private  rights  of  the  citizens. 

^  982.  In  the  next  place,  a  bill  of  rights  is  an  im- 
portant protection  against  unjust  and  oppressive  con- 
duct on  the  part  of  the  majority  of  the  people  them- 
selves. In  a  government  modified,  like  that  of  the 
United  States,  (it  has  been  said  by  a  great  statesman,) 
the  great  danger  lies  rather  in  the  abuse  of  the  commu- 
nity, than  of  the  legislative  body.  The  prescriptions 
in  favour  of  liberty  ought  to  be  levelled  against  that 
quarter,  where  the  greatest  danger  lies,  namely,  that 
which  possesses  the  highest  prerogative  of  power. 
But  this  is  not  found  in  the  executive  or  legislative  de- 
partments of  government ;  but  in  the  body  of  the 
people,  operating  by  the  majority  against  the  minority. 
It  m.ay  be  thought,  that  all  paper  barriers  against  the 
power  of  the  community  are  too  weak  to  be  worthy  of 
attention.  They  are  not  so  strong,  as  to  satisfy  all,  who 
have  seen,  and  examined  thoroughly  the  texture  of 
such  a  defence.  Yet,  as  they  have  a  tendency  to  im- 
press some  degree  of  respect  for  them,  to  establish  the 
public  opinion  in  their  favour,  and  to  rouse  the  attention 
of  the  whole  community,  it  may  be  one  means  to  control 
the  majority  from  those  acts,  to  which  they  might  be 
otherwise  inclined. 

^  983.  The  want  of  a  bill  of  rights,  then,  is  not 
either  an  unfounded  or  illusory  objection.  The  real 
question  is  not,  whether  every  sort  of  right  or  privilege 
or  claim  ought  to  be  affirmed  in  a  constitution ;  but 
whether  such,  as  in  their  own  nature  are  of  vital  im- 
portance, and  peculiarly  susceptible  of  abuse,  ought 

Abr.  88 


698         CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 

not  to  receive  this  solemn  sanction.  Doubtless,  the 
want  of  a  formal  bill  of  rights  in  the  constitution  was 
a  matter  of  very  exaggerated  declamation,  and  party 
zeal,  for  the  mere  purpose  of  defeating  the  constitu- 
tion. But,  so  far  as  the  objection  was  well  founded  in 
fact,  it  was  right  to  remove  it  by  subsequent  amend- 
ments ;  and  congress  have  (as  we  shall  see)  accord- 
ingly performed  the  duty  with  most  prompt  and  lauda- 
ble diligence. 

§  984.  Let  us  now  enter  upon  the  consideration 
of  the  amendments,  which,  (it  will  be  found,)  princi- 
pally regard  subjects  properly  belonging  to  a  bill  of 
rights. 

^  985.  The  first  is  "  Congress  shall  make  no  law 
"  respecting  an  estabhshment  of  religion,  or  prohibiting 
"  the  free  exercise  thereof ;  or  abridging  the  freedom 
"  of  speech,  or  of  the  press  ;  or  the  right  of  the  people 
"  peaceably  to  assemble,  and  to  petition  government  for 
"  a  redress  of  grievances." 

^  986.  And  first,  the  prohibition  of  any  establish- 
ment of  religion,  and  the  freedom  of  religious  opinion 
and  worship. 

How  far  any  government  has  a  right  to  interfere  in 
matters  touching  religion,  has  been  a  subject  much  dis- 
cussed by  writers  upon  public  and  political  law.  The 
right  and  the  duty  of  the  interference  of  government, 
in  matters  of  religion,  have  been  maintained  by  many 
distinguished  authors,  as  well  those,  who  were  the 
warmest  advocates  of  free  governments,  as  those, 
who  were  attached  to  governments  of  a  more  arbitra- 
ry character.  Indeed,  the  right  of  a  society  or  gov- 
ernment to  interfere  in  matters  of  religion  will  hardly 
be  contested  by  any  persons,  who  believe  that  piety, 
religion,  and   morality  are  intimately  connected  with 


CH.  XLIV.]  FREEDOM  OF  RELIGION.  699 

the  well  being  of  the  state,  and  indispensable  to  the 
administration  of  civil  justice.     The  promulgation  of 
the  great  doctrines  of  religion ;  the  being,  and  attri- 
butes,   and   providence   of    one   Almighty  God;   the 
responsibility  to  him  for  all  our  actions,  founded  upon 
moral  freedom  and  accountability ;   a  future  state  of 
rewards  and  punishments ;   the  cultivation   of  all  the 
personal,    social,    and     benevolent    virtues ;  —  these 
never    can    be  a  matter  of    indifference  in  any   well 
ordered  community.      It  is,  indeed,  difficult  to   con- 
ceive, how  any  civilized  society  can  well  exist  with- 
out  them.      And   at   all  events,  it  is   impossible   for 
those,  who  believe  in  the  truth  of  Christianity,  as  a 
divine  revelation,  to  doubt,  that  it  is  the  especial  duty 
of  government  to  foster,  and  encourage  it  among  all 
the  citizens  and  subjects.     This  is  a  point  wholly  dis- 
tinct  from  that   of  the   right  of  private  judgment   in 
matters  of  rehgion,  and  of  the  freedom  of  public  wor- 
ship according  to  the  dictates  of  one's  own  conscience. 
§  987.    The  real  difficulty  lies  in  ascertaining  the 
limits,  to  which  government  may  rightfully  go  in  fos- 
tering and  encouraging  religion.      Three   cases   may 
easily   be     supposed.      One,    where   a     government 
affords  aid  to  a  particular  religion,  leaving  all  persons 
free  to  adopt  any  other ;    another,  where   it   creates 
an  ecclesiastical  establishment  for  the  propogation  of 
the  doctrines  of  a  particular  sect  of  that  religion,  leav- 
ing a  like  freedom  to  all  others ;  and  a  third,  where  it 
creates  such  an  establishment,  and  excludes  all  persons, 
not  belonging  to  it,  either  wholly,  or  in  part,  from  any 
participation  in  the  public  honours,  trusts,  emoluments, 
privileges,  and  immunities  of  the  state.     For  instance, 
a  government  may  simply  declare,  that  the  Christian 
religion  shall  be  the  religion  of  the  state,  and  shall  be 


700    CONSTITUTION  OF  THE  U.  STATES.  [bOOK  III. 

aided,  and  encouraged  in  all  the  varieties  of  sects  be- 
longing to  it ;  or  it  may  declare,  that  the  Catholic  or 
Protestant  religion  shall  be  the  religion  of  the  state, 
leaving  every  man  to  the  free  enjoyment  of  his  own 
religious  opinions  ;  or  it  may  establish  the  doctrines  of 
a  particular  sect,  as  of  Episcopalians,  as  the  religion  of 
the  state,  with  a  like  freedom  ;  or  it  may  establish  the 
doctrines  of  a  particular  sect,  as  exclusively  the  re- 
ligion of  the  state,  tolerating  others  to  a  limited  ex- 
tent, or  excluding  all,  not  belonging  to  it,  from  all 
public  honours,  trusts,  emoluments,  privileges,  and 
immunities. 

^  988.  Probably  at  the  time  of  the  adoption  of  the 
constitution,  and  of  the  amendment  to  it,  now  under 
consideration,  the  general,  if  not  the  universal,  senti- 
ment in  America  was,  that  Christianity  ought  to  re- 
ceive encouragement  from  the  state,  so  far  as  it  is  not 
incompatible  with  the  private  rights  of  conscience, 
and  the  freedom  of  religious  worship.  An  attempt  to 
level  all  religions,  and  to  make  it  a  matter  of  state 
policy  to  hold  all  in  utter  indifference,  would  have 
created  universal  disapprobation,  if  not  universal  in- 
dignation. 

§  989.  It  yet  remains  a  problem  to  be  solved  in 
human  affairs,  whether  any  free  government  can  be 
permanent,  where  the  public  worship  of  God,  and  the 
support  of  religion,  constitute  no  part  of  the  policy  or 
duty  of  the  state  in  any  assignable  shape.  The  future 
experience  of  Christendom,  and  chiefly  of  the  American 
states,  must  settle  this  problem,  as  yet  new  in  the  his- 
tory of  the  world,  abundant,  as  it  has  been,  in  experi- 
ments in  the  theory  of  government. 

§  990.  But  the  duty  of  supporting  religion,  and 
especially  the  Christian  religion,  is  very  different  from 


CH.  XLIV.]  FREEDOM  OF  RELIGION.  701 

the  right  to  force  the  consciences  of  other  men,  or  to 
punish  them  for  worshipping  God  in  the  manner,  which, 
they  believe,  their  accountability  to  him  requires.  It 
has  been  truly  said,  that  "religion,  or  the  duty  we 
owe  to  our  Creator,  and  the  manner  of  discharging  it, 
can  be  dictated  only  by  reason  and  conviction,  not  by 
force  or  violence."  Mr.  Locke  himself,  who  did  not 
doubt  the  right  of  government  to  interfere  in  matters  of 
religion,  and  especially  to  encourage  Christianity,  has 
at  the  same  lime  expressed  his  opinion  of  the  right  of 
private  judgment,  and  liberty  of  conscience,  in  a  man- 
ner becoming  his  character,  as  a  sincere  friend  of  civil 
and  religious  liberty.  "  No  man,  or  society  of  men," 
says  he,  "  have  any  authority  to  impose  their  opinions 
or  interpretations  on  any  other,  the  meanest  Christian  ; 
since,  in  matters  of  religion,  every  man  must  know,  and^ 
believe,  and  give  an  account  for  himself."  The  rights 
of  conscience  are,  indeed,  beyond  the  just  reach  of 
any  human  power.  They  are  given  by  God,  and  can- 
not be  encroached  upon  by  human  authority,  without 
a  criminal  disobedience  of  the  precepts  of  natural,  as 
well  as  of  revealed  religion. 

§  991.  The  real  object  of  the  amendment  was,  not 
to  countenance,  much  less  to  advance  Mahometanism, 
or  Judaism,  or  infidelity,  by  prostrating  Christianity ; 
but  to  exclude  all  rivalry  among  Christian  sects,  and 
to  prevent  any  national  ecclesiastical  establishment, 
which  should  give  to  an  hierarchy  the  exclusive  pa- 
tronage of  the  national  government.  It  thus  sought  to 
cut  off  the  means  of  religious  persecution,  (the  vice 
and  pest  of  former  ages,)  and  the  power  of  subverting 
the  rights  of  conscience  in  matters  of  religion,  which 
had  been  trampled  upon  almost  from  the  days  of  the 
Apostles  to  the  present  age.     The  history  of  the  pa- 


702  CONSTITUTION  OF  THE  U.     STATES.     [bOOK  III. 

rent  country  had  afforded  the  most  solemn  warnings 
and  melancholy  instructions  on  this  head ;  and  even 
New-England,  the  land  of  the  persecuted  puritans,  as 
well  as  other  colonies,  where  the  Church  of  Eng- 
land had  maintained  its  superiority,  had  furnished  a 
chapter,  as  full  of  dark  bigotry  and  intolerance,  as  any, 
which  could  be  found  to  disgrace  the  pages  of  foreign 
annals.  Apostacy,  heresy,  and  nonconformity  have 
been  standard  crimes  for  public  appeals,  to  kindle  the 
flames  of  persecution,  and  apologize  for  the  most 
atrocious  triumphs  over  innocence  and  virtue. 

^  992.  It  was  under  a  solemn  consciousness  of  the 
dangers  from  ecclesiastical  ambition,  the  bigotry  of 
spiritual  pride,  and  the  intolerance  of  sects,  thus  ex- 
emplified in  our  domestic,  as  well  as  in  foreign  annals, 
that  it  was  deemed  advisable  to  exclude  from  the 
national  government  all  power  to  act  upon  the  subject. 
The  situation,  too,  of  the  different  states  equally  pro- 
claimed the  policy,  as  well  as  the  necessity,  of  such  an 
exclusion.  In  some  of  the  states,  episcopalians  con- 
stituted the  predominant  sect;  in  others,  presbjterians  ; 
in  others,  congregationahsts ;  in  others,  quakers ;  and 
in  others  again,  there  was  a  close  numerical  rivalry 
among  contending  sects.  It  was  impossible,  that  there 
should  not  arise  perpetual  strife  and  perpetual  jealousy 
on  the  subject  of  ecclesiastical  ascendancy,  if  the  na- 
tional government  were  left  free  to  create  a  religious 
establishment.  The  only  security  was  in  extirpating 
the  power.  But  this  alone  would  have  been  an  imper- 
fect security,  if  it  had  not  been  followed  up  by  a  decla- 
ration of  the  right  of  the  free  exercise  of  religion,  and 
a  prohibition  (as  we  have  seen)  of  all  religious  tests. 
Thus,  the  whole  power  over  the  subject  of  religion  is 
left  exclusively  to  the  state  governments,  to  be  acted 


CH.  XLIV.]  FREEDOM  OF  RELIGION.  703 

upon  according  to  their  own  sense  of  justice,  and  the 
state  constitutions ;  and  the  Catholic  and  the  Protes- 
tant, the  Calvinist  and  the  Arminian,  the  Jew  and  the 
Infidel,  may  sit  down  at  the  common  table  of  the  na- 
tional councils,  without  any  inquisition  into  their  faith, 
or  mode  of  worship. 

^  993.  The  next  clause  of  the  amendment  respects 
the  liberty  of  the  press.  "  Congress  shall  make  no 
law  abridging  the  freedom  of  speech,  or  of  the  press." 
That  this  amendment  was  intended  to  secure  to  every 
citizen  an  absolute  right  to  speak,  or  write,  or  print, 
whatever  he  might  please,  without  any  responsibihty, 
public  or  private,  therefor,  is  a  supposition  too  wild  to 
be  indulged  by  any  rational  man.  This  would  be  to 
allow  to  every  citizen  a  right  to  destroy,  at  his  plea- 
sure, the  reputation,  the  peace,  the  property,  and  even 
the  personal  safety  of  every  other  citizen.  A  man 
might,  out  of  mere  maUce  and  revenge,  accuse  an- 
other of  the  most  infamous  crimes ;  might  excite 
against  him  the  indignation  of  all  his  fellow  citizens 
by  the  most  atrocious  calumnies ;  might  disturb,  nay, 
overturn  all  his  domestic  peace,  and  embitter  his  pa- 
rental affections ;  might  inflict  the  most  distressing 
punishments  upon  the  weak,  the  timid,  and  the  inno- 
cent ;  might  prejudice  all  a  man's  civil,  and  political, 
and  private  rights ;  and  might  stir  up  sedition,  rebel- 
lion, and  treason  even  against  the  government  itself, 
in  the  wantonness  of  his  passions,  or  the  corruption 
of  his  heart.  Civil  society  could  not  go  on  under 
such  circumstances.  Men  would  then  be  obliged 
to  resort  to  private  vengeance,  to  make  up  for  the  de- 
ficiencies of  the  law ;  and  assassinations,  and  savage 
cruelties  would  be  perpetrated  with  all  the  frequency 
belonging  to  barbarous  and  brutal  communities.     It  is 


704  CONSTITUTION  OF  THE  U.  STATES.    [bOOK  III. 

plain,  then,  that  the  language  of  this  amendment  im- 
ports no  more,  than  that  every  man  shall  have  a  right 
to  speak,  write,  and  print  his  opinions  upon  any  sub- 
ject whatsoever,  without  any  prior  restraint,  so  always, 
that  he  does  not  injure  any  other  person  in  his  rights, 
person,  property,  or  reputation;  and  so  always,  that 
he  does  not  thereby  disturb  the  public  peace,  or  attempt 
to  subvert  the  government.  It  is  neither  more  nor  less, 
than  an  expansion  of  the  great  doctrine,  recently 
brought  into  operation  in  the  law  of  libel,  that  every 
man  shall  be  at  liberty  to  publish  what  is  true,  with 
good  motives  and  for  justifiable  ends.  And  with  this 
reasonable  Hmitation  it  is  not  only  right  in  itself,  but  it  is 
an  inestimable  privilege  in  a  free  government.  Without 
such  a  limitation,  it  might  become  the  scourge  of  the 
republic,  first  denouncing  the  principles  of  Hberty,  and 
then,  by  rendering  the  most  virtuous  patriots  odious 
through  the  terrors  of  the  press,  introducing  despotism 
in  its  worst  form. 

^  994.  A  litde  attention  to  the  history  of  other 
countries  in  other  ages  will  teach  us  the  vast  impor- 
tance of  this  right.  It  is  notorious,  that,  even  to  this 
day,  in  some  foreign  countries  it  is  a  crime  to  speak  upon 
any  subject,  religious,  philosophical,  or  political,  what  is 
contrary  to  the  received  opinions  of  the  government, 
or  the  institutions  of  the  country,  however  laudable 
may  be  the  design,  and  however  virtuous  may  be  the 
motive.  Even  to  animadvert  upon  the  conduct  of 
public  men,  of  rulers,  or  representatives,  in  terms  of 
the  strictest  truth  and  courtesy,  has  been,  and  is  deem- 
ed, a  scandal  upon  the  supposed  sanctity  of  their  sta- 
tions and  characters,  subjecting  the  party  to  grievous 
punishment.  In  some  countries  no  works  can  be  printed 
at  all,  whether/of  science,  or  literature,  or  philosophy, 


CH.  XLIV.]  LIBERTY  OF  THE  PRESS.  705 

without  the  previous  approbation  of  the  government ; 
and  the  press  has  been  shackled,  and  compelled  to 
speak  only  in  the  timid  language,  w^hich  the  cringing 
courtier,  or  the  capricious  inquisitor,  would  license  for 
publication.  The  Bible  itself,  the  common  inheritance, 
not  merely  of  Christendom,  but  of  the  world,  has  been 
put  exclusively  under  the  control  of  government ;  and 
not  allowed  to  be  seen,  or  heard,  except  in  a  language 
unknown  to  the  common  inhabitants  of  the  country. 
To  publish  a  translation  in  the  vernacular  tongue,  has 
been  in  former  times  a  flagrant  offence. 

§  995.  There  is  a  good  deal  of  loose  reasoning  on 
the  subject  of  the  liberty  of  the  press,  as  if  its  inviola- 
bility were  constitutionally  such,  that,  like  the  king  of 
England,  it  could  do  no  wrong,  and  was  free  from  every 
inquiry,  and  afforded  a  perfect  sanctuary  for  every 
abuse ;  that,  in  short,  it  implied  a  despotic  sovereignty 
to  do  every  sort  of  wrong,  without  the  slightest  ac- 
countabiHty  to  private  or  public  justice.  Such  a  notion 
is  too  extravagant  to  be  held  by  any  sound  constitu- 
tional lawyer,  with  regard  to  the  rights  and  duties  be- 
longing to  governments  generally,  or  to  the  state  gov- 
ernments in  particular.  If  it  were  admitted  to  be  cor- 
rect, it  might  be  justly  affirmed,  that  the  liberty  of  the 
press  is  incompatible  with  the  permanent  existence 
of  any  free  government.  Mr.  Justice  Blackstone  has 
remarked,  that  the  liberty  of  the  press,  properly  under- 
stood, is  essential  to  the  nature  of  a  free  state ;  but 
that  this  consists  in  laying  no  previous  restraints  upon 
publications,  and  not  in  freedom  from  censure  for  crim- 
inal matter,  when  pubUshed.  Every  freeman  has  an 
undoubted  right  to  lay  what  sentiments  he  pleases  be- 
fore the  public ;  to  forbid  this  is  to  destroy  the  freedom 
of  the  press.     But,  if  he  publishes  what  is  improper, 

Abr.  89 


706  CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 

mischievous,  or  illegal,  he  must  take  the  consequences 
of  his  own  temerity.  To  subject  the  press  to  the 
restrictive  power  of  a  licenser,  as  was  formerly  done 
before,  and  since  the  revolution  (of  1688),  is  to  subject 
all  freedom  of  sentiment  to  the  prejudices  of  one  man, 
and  make  him  the  arbitrary  and  infallible  judge  of  all 
controverted  points  in  learning,  religion,  and  govern- 
ment. But  to  punish  any  dangerous  or  offensive  writ- 
ings, which,  when  published,  shall,  on  a  fair  and  impar- 
tial trial,  be  adjudged  of  a  pernicious  tendency,  is  neces- 
sary for  the  preservation  of  peace  and  good  order,  of 
government  and  religion,  the  only  solid  foundations  of 
civil  hberty.  Thus,  the  will  of  individuals  is  still  left 
free  ;  the  abuse  only  of  that  free  will  is  the  object  of 
legal  punishment.  Neither  is  any  restraint  hereby  laid 
upon  freedom  of  thought  or  inquiry ;  liberty  of  private 
sentiment  is  still  left ;  the  disseminating,  or  making 
public  of  bad  sentiments,  destructive  of  the  ends  of 
society,  is  the  crime,  which  society  corrects.  A  man 
may  be  allowed  to  keep  poisons  in  his  closet ;  but  not 
pubhcly  to  vend  them  as  cordials.  And  after  some 
additional  reflections,  he  concludes  with  this  memorable 
sentence :  "  So  true  will  it  be  found,  that  to  censure 
the  licentiousness,  is  to  maintain  the  liberty  of  the 
press." 

§  996.  The  doctrine  laid  down  by  Mr.  Justice  Black- 
stone,  respecting  the  liberty  of  the  press,  has  not  been 
repudiated  (as  far  as  is  known)  by  any  solemn  decision 
of  any  of  the  state  courts,  in  respect  to  their  own  mu- 
nicipal jurisprudence.  On  the  contrary,  it  has  been  re- 
peatedly affirmed  in  several  of  the  states,  notwithstand- 
ing their  constitutions,  or  laws  recognize,  that  "  the  lib- 
erty of  the  press  ought  not  to  be  restrained,"  or  more 
emphatically,  that  "  the  liberty  of  the  press  shall  be  in- 


CH.  XLIV.]  RIGHT  OF  PETITION.  707 

violably  maintained."  Nay ;  it  has  farther  been  held, 
that  the  truth  of  the  facts  is  not  alone  sufficient  to  jus- 
tify the  publication,  unless  it  is  done  from  good  motives, 
and  for  justifiable  purposes,  or,  in  other  words,  upon  an 
occasion,  (as  upon  the  canvass  of  candidates  for  public 
office,)  when  public  duty,  or  private  right  requires  it. 
And  Mr.  Chancellor  Kent,  upon  a  large  survey  of  the 
whole  subject,  has  not  scrupled  to  declare,  that  "  it  has 
become  a  constitutional  principle  in  this  country,  that 
every  citizen  may  freely  speak,  write,  and  publish  his 
sentiments  on  all  subjects,  being  responsible  for  the 
abuse  of  that  right ;  and,  that  no  law  can  rightfully 
be  passed,  to  restrain,  or  abridge  the  freedom  of  the 
press." 

§  997.  The  remaining  clause  secures  "  the  right  of 
"  the  people  peaceably  to  assemble  and  to  petition  the 
"  government  for  a  redress  of  grievances." 

^  998.  This  would  seem  unnecessary  to  be  ex- 
pressly provided  for  in  a  repubhcan  government,  since 
it  results  from  the  very  nature  of  its  structure  and 
institutions.  It  is  impossible,  that  it  could  be  practically 
denied,  until  the  spirit  of  liberty  had  wholly  disappear- 
ed, and  the  people  had  become  so  servile  and  debased, 
as  to  be  unfit  to  exercise  any  of  the  privileges  of 
freemen. 

§  999.  The  provision  was  probably  borrowed  from 
the  declaration  of  rights  in  England,  on  the  revolution 
of  1 688,  in  which  the  right  to  petition  the  king  for  a 
redress  of  grievances  was  insisted  on  ;  and  the  right  to 
petition  parliament  in  the  like  manner  has  been  pro- 
vided for,  and  guarded  by  statutes  passed  before,  as 
well  as  since  that  period.  Mr.  Tucker  has  indulged 
himself  in  a  disparaging  criticism  upon  the  phraseology 
of  this  clause,  as  savouring  too  much  of  that  style  of 


708         CONSTITUTION  OF  THE  U.  STATES.     [bOOK  III. 

condescension,  in  which  favours  are  supposed  to  be 
granted.  But  this  seems  to  be  quite  overstrained; 
since  it  speaks  the  voice  of  the  people  in  the  language 
of  prohibition,  and  not  in  that  of  affirmance  of  a  right, 
supposed  to  be  unquestionable,  and  inherent. 

§  1 000.  The  next  amendment  is  :  "A  well  regulated 
"  militia  being  necessary  to  the  security  of  a  free  state, 
"  the  right  of  the  people  to  keep  and  bear  arms  shall 
"  not  be  infringed." 

§  1001.  The  importance  of  this  article  will  scarcely 
be  doubted  by  any  persons,  who  have  duly  reflected 
upon  the  subject.      The   militia  is  the  natural  defence 
of  a  free  country  against  sudden  foreign  invasions,  do- 
mestic insurrections,  and  domestic  usurpations  of  power 
by  rulers.     It  is  against  sound  policy  for  a  free  people 
to  keep  up  large  military  establishments  and  standing 
armies  in  time  of  peace,  both  from  the  enormous  ex- 
penses, with  which  they  are  attended,  and  the  facile 
means,  which  they  afford  to  ambitious  and  unprincipled 
rulers,  to  subvert  the  government,  or  trample  upon  the 
rights  of  the  people.     The  right  of  the  citizens  to  keep, 
and  bear  arms  has  justly  been  considered,  as  the  palla- 
dium of  the  liberties  of  a  republic ;  since  it  offers  a  strong 
moral  check  against  the  usurpation  and  arbitrary  power 
of  rulers  ;  and  will  generally,  even  if  these  are  success- 
ful in  the  first  instance,  enable  the  people  to  resist,  and 
triumph  over  them.     And  yet,  though  this  truth  would 
seem  so  clear,  and  the  importance  of  a  well  regulated 
militia  would  seem  so  undeniable,  it  cannot  be  disguis- 
ed, that  among  the  American  people  there  is  a  growing 
indifference  to  any  system  of  militia  discipline,  and  a 
strong  disposition,  from  a  sense  of  its  burthens,  to  be 
rid  of  all  regulations.     How  it  is  practicable  to  keep  the 
people  duly  armed  without  some  organization,  it  is  diffi- 


CH.  XLIV.]  GENERAL  WARRANTS.  709 

cult  to  see.  There  is  certainly  no  small  danger,  that 
indifference  may  lead  to  disgust,  and  disgust  to  con- 
tempt ;  and  thus  gradually  undermine  all  the  protection 
intended  by  this  clause  of  our  national  bill  of  rights. 

^  1002.  The  next  amendment  is :  "No  soldier  shall 
"  in  time  of  peace  be  quartered  in  any  house,  without 
"  the  consent  of  the  owner,  nor  in  time  of  Vv^ar,  but  in  a 
"  manner  to  be  prescribed  by  law." 

§  1003.  This  provision  speaks  for  itself.  Its  plain 
object  is  to  secure  the  perfect  enjoyment  of  that  great 
right  of  the  common  law,  that  a  man's  house  shall  be 
his  own  castle,  privileged  against  all  civil  and  miUtary 
intrusion.  The  billetting  of  soldiers  in  time  of  peace 
upon  the  people  has  been  a  common  resort  of  arbitrary 
princes,  and  is  full  of  inconvenience  and  peril.  In  the 
petition  of  right  (4  Charles  I),  it  was  declared  by  par- 
liament to  be  a  great  grievance. 

§  1004.  The  next  amendment  is :  "  The  right  of  the 
"  people  to  be  secure  in  their  persons,  houses,  papers, 
"and  effects  against  unreasonable  searches  and  seiz- 
"  ures  shall  not  be  violated ;  and  no  warrants  shall  issue, 
"  but  upon  probable  cause,  supported  by  oath  or  affir- 
"  mation,  and  particularly  describing  the  place  to  be 
"  searched,  and  the  person  or  things  to  be  seized." 

^  1005.  This  provision  seems  indispensable  to  the  full 
enjoyment  of  the  rights  of  personal  security,  personal 
liberty,  and  private  property.  It  is  little  more  than  the 
affirmance  of  a  great  constitutional  doctrine  of  the  com- 
mon law.  And  its  introduction  into  the  amendments 
was  doubtless  occasioned  by  the  strong  sensibility  ex- 
cited, both  in  England  and  America,  upon  the  subject 
of  general  warrants  almost  upon  the  eve  of  the  Ameri- 
can Revolution.  Although  special  warrants  upon  com- 
plaints under  oath,  stating  the  crime,  and  the  party  by 


710         CONSTITUTION  OF  THE  U.  STATES.       [BOOK  III. 

name,  against  whom  the  accusation  is  made,  are  the 
only  legal  warrants,  upon  which  an  arrest  can  be  made 
according  to  the  law  of  England ;  yet  a  practice  had 
obtained  in  the  secretaries'  office  ever  since  the  resto- 
ration, (grounded  on  some  clauses  in  the  acts  for  regu- 
lating the  press,)  of  issuing  general  warrants  to  take  up, 
without  naming  any  persons  in  particular,  the  authors, 
printers,  and  publishers  of  such  obscene,  or  seditious 
libels,  as  were  particularly  specified  in  the  warrant. 
When  these  acts  expired,  in  1 694,  the  same  practice 
was  continued  in  every  reign,  and  under  every  admin- 
istration, except  the  last  four  years  of  Queen  Anne's 
reign,  down  to  the  year  1 763.  The  general  warrants, 
so  issued,  in  general  terms  authorized  the  officers  to 
apprehend  all  persons  suspected,  without  naming,  or 
describing  any  person  in  special.  In  the  year  1763, 
the  legality  of  these  general  warrants  was  brought  be- 
fore the  King's  Bench  for  solemn  decision ;  and  they 
were  adjudged  to  be  illegal,  and  void  for  uncertainty. 
A  warrant,  and  the  complaint,  on  which  the  same  is 
founded,  to  be  legal,  must  not  only  state  the  name  of 
the  party,  but  also  the  time,  and  place,  and  nature  of 
the  offence  with  reasonable  certainty. 

^  1006.  The  next  amendment  is  :  "  Excessive  bail 
"  shall  not  be  required ;  nor  excessive  fines  imposed  ; 
"  nor  cruel  and  unusual  punishments  inflicted."  This 
is  an  exact  transcript  of  a  clause  in  the  bill  of  rights, 
framed  at  the  revolution  of  1688.  The  provision  would 
seem  to  be  wholly  unnecessary  in  a  free  government, 
since  it  is  scarcely  possible,  that  any  department  of  such 
a  government  should  authorize,  or  justify  such  atrocious 
conduct.  It  was,  however,  adopted,  as  an  admonition 
to  all  departments  of  the  national  government,  to  warn 
them  against  such  violent  proceedings,  as  had  taken 


CH.  XLIV.]  NON-ENUMERATED  POWERS.  711 

place  in  England  in  the  arbitrary  reigns  of  some  of  the 
Stuarts.  In  those  times  a  demand  of  excessive  bail  was 
often  made  against  persons,  who  were  odious  to  the 
court,  ^nd  its  favourites  ;  and  on  failing  to  procure  it, 
they  were  committed  to  prison.  Enormous  fines  and 
amercements  were  also  sometimes  imposed,  and  cruel 
and  vindictive  punishments  inflicted.  Upon  this  sub- 
ject Mr.  Justice  Blackstone  has  wisely  remarked,  that 
sanguinary  laws  are  a  bad  symptom  of  the  distemper  of 
any  state,  or  at  least  of  its  weak  constitution.  The 
laws  of  the  Roman  kings,  and  the  twelve  tables  of  the 
Decemvirs,  were  full  of  cruel  punishments  ;  the  Porcian 
law,  which  exempted  all  citizens  from  sentence  of  death, 
silently  abrogated  them  all.  In  this  period  the  republic 
flourished.  Under  the  emperors  severe  laws  were  re- 
vived, and  then  the  empire  fell. 

§  1007.  The  next  amenr^mentis  :  "  The  enumeration 
"  in  the  constitution  of  certain  rights  shall  not  be  con- 
"strued  to  deny,  or  disparage  others  retained  by  the 
"people."  This  clause  was  manifestly  introduced  to 
prevent  any  perverse,  or  ingenious  misapplication  of  the 
well  known  maxim,  that  an  affirmation  in  particular  cases 
implies  a  negation  in  all  others ;  and  e  converso,  that 
a  negation  in  particular  cases  impMes  an  affirmation  in 
all  others.  The  maxim,  rightly  understood,  is  perfectly 
sound  and  safe  ;  but  it  has  often  been  strangely  forced 
from  its  natural  meaning  into  the  support  of  the  most 
dangerous  political  heresies. 

§  1008.  The  next  and  last  amendment  is:  "The 
"  powers  not  delegated  to  the  United  States  by  the 
"constitution,  nor  prohibited  by  it  to  the  states,  are  re- 
"  served  to  the  states  respectively,  or  to  the  people." 

^  1009.  This  amendment  is  a  mere  affirmation  of 
what,  upon  any  just  reasoning,  is  a  necessary  rule  of 


712  CONSTITUTION  OF  THE  U.  STATES.        [bOOK  III. 

interpreting  the  constitution.  Being  an  instrument  of 
limited  and  enumerated  powers,  it  follows  irresistibly, 
that  what  is  not  conferred,  is  withheld,  and  belongs  to 
the  state  authorities,  if  invested  by  their  constitutions 
of  government  respectively  in  them  ;  and  if  not  so  in- 
vested, it  is  retained  by  the  people,  as  a  part  of  their 
residuary  sovereignty.  When  this  amendment  was 
before  congress,  a  proposition  was  moved,  to  insert  the 
word  "  expressly  "  before  "  delegated,"  so  as  to  read 
"  the  powers  not  expressly  delegated  to  the  United 
States  by  the  constitution,"  &.c.  On  that  occasion  it 
was  remarked,  that  it  is  impossible  to  confine  a  govern- 
ment to  the  exercise  of  express  powers.  There  must 
necessarily  be  powers  admitted  by  implication,  unless 
the  constitution  should  descend  to  the  most  minute  de- 
tails. It  is  a  general  principle,  that  all  corporate  bodies 
possess  all  powers  incident  to  a  corporate  capacity,  with- 
out being  absolutely  expressed.  The  motion  was  ac- 
cordingly negatived.  Indeed,  one  of  the  great  defects 
of  the  confederation  was,  (as  we  have  already  seen,) 
that  it  contained  a  clause,  prohibiting  the  exercise  of 
any  power,  jurisdiction,  or  right,  not  expressly  delegat- 
ed. The  consequence  was,  that  congress  were  crip- 
pled at  every  step  of  their  progress ;  and  were  often 
compelled  by  the  very  necessities  of  the  times  to  usurp 
powers,  which  they  did  not  constitutionally  possess ; 
and  thus,  in  effect,  to  break  down  all  the  great  barriers 
against  tyranny  and  oppression. 

^  1010.  It  is  plain,  therefore,  that  it  could  not  have 
been  the  intention  of  the  framers  of  this  amendment  to 
give  it  effect,  as  an  abridgment  of  any  of  the  powers 
granted  under  the  constitution,  whether  they  are  ex- 
press or  implied,  direct  or  incidental.  Its  sole  design 
is  to  exclude  any  interpretation,  by  which  other  powers 


CH.  XLIV.]  POWERS  NOT  DELEGATED.  713 

should  be  assumed  beyond  those,  which  are  granted. 
All  that  are  granted  in  the  original  instrument,  whether 
express  or  implied,  whether  direct  or  incidental,  are 
left  in  their  original  state.  All  powers  not  delegat- 
ed, (not,  all  powers  not  expressly  delegated,)  and  not 
prohibited,  are  reserved.  The  attempts,  then,  which 
have  been  made  from  time  to  time,  to  force  upon  this 
language  an  abridging,  or  restrictive  influence,  are  ut- 
terly unfounded  in  any  just  rules  of  interpreting  the 
words,  or  the  sense  of  the  instrument.  Stripped  of  the 
ingenious  disguises,  in  which  they  are  clothed,  they  are 
neither  more  nor  less,  than  attempts  to  foist  into  the 
text  the  word  "  expressly  ; "  to  qualify,  what  is  gene- 
ral, and  obscure,  what  is  clear,  and  defined.  They  make 
the  sense  of  the  passage  bend  to  the  wishes  and  preju- 
dices of  the  interpreter ;  and  employ  criticism  to  sup- 
port a  theory,  and  not  to  guide  it.  One  should  suppose, 
if  the  history  of  the  human  mind  did  not  furnish  abun- 
dant proofs  to  the  contrary,  that  no  reasonable  man 
would  contend  for  an  interpretation  founded  neither  in 
the  letter,  nor  in  the  spirit  of  an  instrument.  Where  is 
controversy  to  end,  if  we  desert  both  the  letter  and  the 
spirit  1  What  is  to  become  of  constitutions  of  govern- 
ment, if  they  are  to  rest,  not  upon  the  plain  import  of 
their  words,  but  upon  conjectural  enlargements  and  re- 
strictions, to  suit  the  temporary  passions  and  interests 
of  the  day  ?  Let  us  never  forget,  that  our  constitutions 
of  government  are  solemn  instruments,  addressed  to 
the  common  sense  of  the  people  and  designed  to  fix, 
and  perpetuate  their  rights  and  their  liberties.  They 
are  not  to  be  frittered  away  to  please  the  demagogues 
of  the  day.  They  are  not  to  be  violated  to  gratify  the 
ambition  of  poUtical  leaders.  They  are  to  speak  in  the 
same  voice  now,  and  for  ever.  They  are  of  no  man's 
Ahr,  90 


714        CONSTITUTION  OF  THE  U.  STATES.       [bOOK  III. 

private  interpretation.  They  are  ordained  by  the  will 
of  the  people  ;  and  can  be  changed  only  by  the  sov- 
ereign command  of  the  people. 

^  1011.  It  has  been  justly  remarked,  that  the  erec- 
tion of  a  new  government,  whatever  care  or  wisdom 
may  distinguish  the  work,  cannot  fail  to  originate  ques- 
tions of  intricacy  and  nicety ;  and  these  may,  in  a  par- 
ticular manner,  be  expected  to  flow  from  the  establish- 
ment of  a  constitution,  founded  upon  the  total,  or 
partial  incorporation  of  a  number  of  distinct  sovereign- 
ties. Time  alone  can  mature  and  perfect  so  compound 
a  system ;  liquidate  the  meaning  of  all  the  parts ;  and 
adjust  them  to  each  other  in  a  harmonious  and  consis- 
tent whole. 


CH.  XLV.]  CONCLUDING  CHAPTER.  715 

CHAPTER  XLV. 


CONCLUDING  REMARKS. 

^  1012.  We  have  now  reviewed  all  the  provisions 
of  the  original  constitution  of  the  United  States,  and  all 
the  amendments,  which  have  been  incorporated  into  it. 
And,  here,  the  task  originally  proposed  in  these  Com- 
mentaries is  brought  to  a  close.  Many  reflections 
naturally  crowd  upon  the  mind  at  such  a  moment  ; 
many  grateful  recollections  of  the  past ;  and  many  anx- 
ious thoughts  of  the  future.  The  past  is  secure.  It  is 
unalterable.  The  seal  of  eternity  is  upon  it.  The  wis- 
dom, which  it  has  displayed,  and  the  blessings,  which 
it  has  bestowed,  cannot  be  obscured ;  neither  can  they 
be  debased  by  human  folly,  or  human  infirmity.  The 
future  is  that,  which  may  well  awaken  the  most  earnest 
solicitude,  both  for  the  virtue  and  the  permanence  of 
our  republic.  The  fate  of  other  republics,  their  rise, 
their  progress,  their  decline,  and  their  fall,  are  written 
but  too  legibly  on  the  pages  of  history,  if  indeed  they 
were  not  continually  before  us  in  the  starding  fragments 
of  their  ruins.  They  have  perished  ;  and  perished  by 
their  own  hands.  Prosperity  has  enervated  them; 
corruption  has  debased  them ;  and  a  venal  populace 
has  consummated  their  destruction.  Alternately  the 
prey  of  military  chieftains  at  home,  and  of  ambitious 
invaders  from  abroad,  they  have  been  sometimes  cheat- 
ed out  of  their  liberties  by  servile  demagogues  ;  some- 
times betrayed  into  a  surrender  of  them  by  false  patri- 
ots ;  and  sometimes  they  have  willingly  sold  them  for  a 
price  to  the  despot,  who  has  bidden  highest  for  his  vie- 


716  CONSTITUTION  OF  THE  U.  STATES.        [bOOK    III. 

tims.  They  have  disregarded  the  warning  voice  of 
their  best  statesmen  ;  and  have  persecuted,  and  driven 
from  office  their  truest  friends.  They  have  listened  to 
the  fawning  sycophant,  and  the  base  calumniator  of  the 
wise  and  the  good.  They  have  reverenced  power 
more  in  its  high  abuses  and  summary  movements,  than 
in  its  calm  and  constitutional  energy,  when  it  dispensed 
blessings  with  an  unseen,  but  liberal  hand.  They  have 
surrendered  to  faction,  what  belonged  to  the  country. 
Patronage  and  party,  the  triumph  of  a  leader,  and  the 
discontents  of  a  day,  have  outweighed  all  solid  princi- 
ples and  institutions  of  government.  Such  are  the 
melancholy  lessons  of  the  past  history  of  republics  down 
to  our  own. 

^  1013.  It  is  not  my  design  to  detain  the  reader,  by 
any  elaborate  reflections  addressed  to  his  judgment, 
either  by  way  of  admonition  or  of  encouragement.  But 
it  may  not  be  wholly  without  use  to  glance  at  one  or 
two  considerations,  upon  which  our  meditations  cannot 
be  too  frequently  indulged. 

^  1014.  In  the  first  place,  it  cannot  escape  our  no- 
tice, how  exceedingly  difficult  it  is  to  settle  the  founda- 
tions of  any  government  upon  principles,  which  do  not 
admit  of  controversy  or  question.  The  very  elements, 
out  of  which  it  is  to  be  built,  are  susceptible  of  infinite 
modifications ;  and  theory  too  often  deludes  us  by  the 
attractive  simplicity  of  its  plans,  and  imagination  by  the 
visionary  perfection  of  its  speculations.  In  theory,  a 
government  may  promise  the  most  perfect  harmony  of 
operations  in  all  its  various  combinations.  In  practice, 
the  whole  machinery  may  be  perpetually  retarded,  or, 
thrown  out  of  order  by  accidental  mal-adjustments.  In 
theory,  a  government  may  seem  deficient  in  unity  of 
design  and  symmetry  of  parts ;  and  yet,  in  practice,  it 


CH.  XL  v.]      CONCLUDING  CHAPTER.  717 

may  work  with  astonishing  accuracy  and  force  for  the 
general  welfare.  Whatever,  then,  has  been  found  to 
work  well  in  experience,  should  be  rarely  hazarded 
upon  conjectural  improvements.  Time,  and  long  and 
steady  operation  are  indispensable  to  the  perfection  of 
all  social  institutions.  To  be  of  any  value  they  must 
become  cemented  with  the  habits,  the  feelings,  and  the 
pursuits  of  the  people.  Every  change  discomposes  for 
a  while  the  whole  arrangements  of  the  system.  What 
is  safe  is  not  always  expedient ;  what  is  new  is  often 
pregnant  with  unforeseen  evils,  and  imaginary  good. 

^  1015.  In  the  next  place,  the  slightest  attention  to 
the  history  of  the  national  constitution  must  satisfy 
every  reflecting  mind,  how  many  difficulties  attended 
its  formation  and  adoption,  from  real  or  imaginary  differ- 
ences of  interests,  sectional  feelings,  and  local  institu- 
tions. It  is  an  attempt  to  create  a  national  sovereignty, 
and  yet  to  preserve  the  state  sovereignties  ;  though  it 
is  impossible  to  assign  definite  boundaries  in  all  cases 
to  the  powers  of  each.  The  influence  of  the  disturbing 
causes,  which,  more  than  once  in  the  convention,  were 
on  the  point  of  breaking  up  the  Union,  have  since  im- 
measurably increased  in  concentration  and  vigour.  The 
very  inequalities  of  a  government,  confessedly  founded 
in  a  compromise,  were  then  felt  with  a  strong  sensibili- 
ty ;  and  every  new  source  of  discontent,  whether  acci- 
dental or  permanent,  has  since  added  increased  activity 
to  the  painful  sense  of  these  inequalities.  The  North 
cannot  but  perceive,  that  it  has  yielded  to  the  South  a 
superiority  of  representatives,  already  amounting  to 
twenty-five,  beyond  its  due  proportion  ;  and  the  South 
imagines,  that,  with  all  this  preponderance  in  represen- 
tation, the  other  parts  of  the  Union  enjoy  a  more  per- 
fect protection  of  their  interests,  than  its  own.     The 


718  CONSTITUTION  OF  THE  U.  STATES.      [bOOK  III. 

West  feels  its  growing  power  and  weight  in  the 
Union ;  and  the  Atlantic  states  begin  to  learn,  that  the 
sceptre  must  one  day  depart  from  them.  If,  under  these 
circumstances,  the  Union  should  once  be  broken  up,  it 
is  impossible,  that  a  new  constitution  should  ever  be 
formed,  embracing  the  whole  Territory.  We  shall  be 
divided  into  several  nadons  or  confederacies,  rivals  in 
power  and  interest,  too  proud  to  brook  injury,  and  too 
close  to  make  retaliation  distant  or  ineffectual.  Our 
very  animosities  will,  like  those  of  all  other  kindred  na- 
tions, become  more  deadly,  because  our  hneage,  laws, 
and  language  are  the  same.  Let  the  history  of  the  Gre- 
cian and  Italian  republics  warn  us  of  our  dangers.  The 
national  consdtunon  is  our  last,  and  our  only  security. 
United  we  stand ;  divided  we  fall. 

^  1016.  If  these  Commentaries  shall  but  inspire  the 
rising  generation  with  a  more  ardent  love  of  their  coun- 
try, an  unquenchable  thirst  for  liberty,  and  a  profound 
reverence  for  the  consdtution  and  the  Union,  then  they 
will  have  accomplished  all,  that  their  author  ought  to 
desire.  Let  the  American  youth  never  forget,  that 
they  possess  a  noble  inheritance,  bought  by  the  toils, 
and  sufferings,  and  blood  of  their  ancestors ;  and  capa- 
ble, if  wisely  improved,  and  faithfully  guarded,  of  trans- 
mitting to  their  latest  posterity  all  the  substantial  bless- 
ings of  life,  the  peaceful  enjoyment  of  liberty,  property, 
religion,  and  independence.  The  structure  has  been 
erected  by  architects  of  consummate  skill  and  fidelity ; 
its  foundadons  are  solid ;  its  compartments  are  beauU- 
ful,  as  well  as  useful ;  its  arrangements  are  full  of  wis- 
dom and  order ;  and  its  defences  are  impregnable  from 
without.  It  has  been  reared  for  immortality,  if  the 
work  of  man  may  justly  aspire  to  such  a  tide.  It 
may,  nevertheless,  perish  in  an  hour  by  the  folly,  or 


CH.  XLV.]      CONCLUDING  CHAPTER.  719 

corruption,  or  negligence  of  its  only  keepers,  the  peo- 
ple. Republics  are  created  by  the  virtue,  public  spir- 
it, and  intelligence  of  the  citizens.  They  fall,  when  the 
wise  are  banished  from  the  public  councils,  because 
they  dare  to  be  honest,  and  the  profligate  are  rewarded, 
because  they  flatter  the  people,  in  order  to  betray 
them. 


INDEX 


ACCOUNTS,  Public,  to  be  published 
ACCUSATION,  Self,  Criminals  not  bound  to      . 
ADJOURNMENT  of  Congress,  by  whom      . 

of  each  House 
ADMIRALTY,  Jurisdiction.     {See  Judiciary) 
ADMISSION  of  new  States  into  the  Union 
ALIENS,  who  are        . 

suits  by,  and  against 
ALIEN  ACT,  whether  constitutional 
AMBASSADORS,  appointment  of  .       ^     , 

Receiving  of 
Dismission  of  , 

Protection,  and  rights  of 
Suits  by  and  against 
AMENDMENTS  OF  CONSTITUTION,  how  made 
APPEAL,  Nature  and  Effect  of  . 

APPEALS  from  ^tate  Courts 
APPELLATE  JURISDICTION.  {See  Judiciary) 
APPOINTMENTS,  to  office  by  president,  and  senate 
By  congress,  and  heads  of 

departments        .  ,  ,  552, 559 

When  discretionary  in  con- 
gress       ....  552 
When  complete              .            .           ,  573 
When  the  party  is  in  office            .           ,          573 
In  case  of  vacancies      .         •   .            ,    573-574 
APPORTIONMENT,  of  Representatives          ,            .          235-^247 
of  Direct  Taxes        ,            .            .    3;38-341 
APPROPRI  \TIONS,  of  Money            .            .           .           346, 486 
for  Internal  Improvements              ,     346-350 
ARMS,  right  to  bear        .            ,            .            .            ,                    708 
ARMY  AND  NAVY,  power  to  create  and  regulate            .     412-419 
ARREST  of  Members  of  Congress      .            ,            ,     303,  307,  308 
ARTS  AND  SCIENCE,  Promotion  of         .            .                 402  -  404 
ATTAINDER,  Prohibition  of  Bills  of,  by  congress                 484  -  485 
by  States      .....      489,496 
Effect  of,  in  Treason           .                ,             466,  467 
Abr.                        91 


486,  487 

659,660,662,663 

295,412,574,576 

295 

614-620 

473,  474 

.       631,633-635 

635,636 

464 

559,560 

574,576-579 

579 

612,  613 

606,612-614 

8             678-682 

651-653 

643-646,652 

651-655 

e              552, 559 

722 


INDEX. 


AUTHORS,  Copyright  of 402-404 

AYES  AND  NOES,  Call  of,   in  congress        .  .  299,300 

B. 

BAIL,  excessive.  Prohibition  of            .            ,           \  .            710 

BANK  OF  UNITED  STATES,  Constitutionality  of  .       444  -  452 

States  cannot  tax            .            .            .  356, 357 

BANKRUPTCY,  Power  of  congress  over        .            .  383,  384  -^91 

BILL  OF  RIGHTS,  Propriety  of            .            .            .  693-698 

BILLS  OF  ATTAINDER,  Prohibition  of  by  congress  484,  485 

by  States  .     489,  496 

BILLS  OF  CREDIT,  Prohibition  of           .            .  489,  491  -  496 

What  are            .            .            .  494,495 

BILLS  OF  EXCHANGE,  Purchase  of,  by  U.  States  .             480 

BORROW  MONEY,  Power  of  congress  to             .  358,  359 

C. 

CANALS  AND  ROADS,  Power  of  congress  as  to  346-350,443,458 
CAPITATION  TAX,  Power  to  lay  .  .  340,  341,  350 

CAPTURES,  Regulation  of    ....  409-412 

CAROLIN AS,  Origin  and  Settlement  of  .  .  .56-60 

CASES,  What  are  within  the  judicial  power  .  608  -  612 

CENSUS,  when  to  be  taken         ....     235,241,242 
CESSIONS,  for  Seat  of  Government  .  ,  427, 428 

for  Forts,  Arsenals,  «fec.       .  .  427  -  430,  473 

of  Foreign  Territory     ....  459 

CHARTER  Governments,  what  .  .  .  63,64 

CHARTERS,  Whether  contracts,  protected  by  con- 
stitution .  .  .  .  .506-510 
CITIZENS,  who  are      .            .            .            .            .  630-632 
Privileges  and  Immunities  of,  in  each 

State 673,674 

Suits  by  and  against        .  .  .  628,  632 

COINAGE,  Power  of  congress,  over      .  .  .  392,393 

Counterfeiting  ....  393 

Prohibition  upon  the  States  .  .  490, 491 

COLONIES,  AMERICAN,  Origin  and  Settle- 
ment of  .  .  .  3-62 
Title  of  Territory  .  .3-8 
General  Review  of  .  .  62-83 
-  Common  Law  in  .  ,62-66 
Governments  in  .  .  67-70 
Rights  of    .            .            .  70-83 


INDEX.  723 

COLONIES,  Legislative  powers  of       .            .           .  71-73 

C0LUMBL4,  District  of       .            .            .            .            .  427 

Legislation  in              .            .            .  427,428 
COMMERCE,  Power  of  congress  to  regulate 

{See  Taxes)     ....  359-378 

Foreign          ....  359-363 

Domestic  .  .  .        '      359,363-366 

*                      with  Indians             .            .            .  379  -  382 

Exclusive  power  in  Congress      .            .  366-369 

Encouragement  of  Manufactures      .            .  369  -  379 

COMMON  LAW  IN  COLONIES,  Introduction  of         .  62  -  66 

COMMON  DEFENCE,  Taxes  for              .          '.            .  329-331 

COMPACTS,  by  States 489,  490 

COMPENSATION    {See  President,  Judges) 

Representatives            .            .            .  303-307 

Senators                  .            .            .  303-307 

for  Property  taken  for  Public  uses  670,  673 

CONCURRENT  POWERS,  when  in  States        .            .  148  -  154 

CONTEMPTS  OF  CONGRESS,  how  punishable       .  301, 302 

CONFEDERATION,  Origin  and  Formation  of               .  91,  93 

Decline  and  Fall  of      .            .  94-104 

CONGRESS,  Adjournment  of        ....  300 

Quorum  of          .            .            .            .  295-297 

Rules  of       .            .           .           .           .  298,299 

Ayes  and  Noes                .            .            .  299,  300 

Compensation  of      .            .            .            .  303-307 

Disqualifications  of  members  of            .  310-314 

Qualifications  of  Representatives               .  230  -  235 

of  Senators         .             .  263-267 

Organization  and  modes  of  Proceeding  295,  298,300,309 

Division  into  two  Branches            .            .  199-209 

House  of  Representatives        .            .  210  -  251 

Senate 252-290 

Elections  of      ....        291-294,295 

Powers,  when  exclusive  or  not     .            .  348-154 

Meetings  of      .            .            .            .  294, 295 
Privileges  of         .            .    248,249,295-303,307,309 

Journals  of,  to  be  kept             .            .  299, 300 

Contempts  of        .            .            .            .  301, 302 

Mode  of  passing  laws            .            .            .  315-317 

Impeachments  by  and  before       .            .  249-251 

Power  to  Lay  Taxes              .            .  329-346 

Borrow  Money             r          .  358-359 


724  INDEX. 

CONGRESS,  Powers  Continued. 


Regulate  Commerce        « 

.      359-378 

Naturalization             • 

383,  384 

Bankrupt  Laws    , 

.      383-391 

Coin  Money    . 

392,  393 

Weights  and  Measures    . 

394 

Counterfeiting  Coin    . 

394 

Post-offices  and  Post-roads 

.      396-401 

Promotion  of  Science  and  Arts 

402-404 

Piracy  and  Felonies  on  the 

High  Seas 

405-408 

Offences  against  the  Law  of 

Nations          .            .            « 

405-408 

War  and  Captures             * 

409-412 

Army  and  Navy 

412-419 

Militia 

420 --426 

Seat  of  Government     . 

427,  428 

Forts,  Arsenals,  Dock- 

yards, &c.            .            * 

427-430 

Incidental  Powers 

431-441 

Resulting  Powers 

442,  443 

Bank  of  United  States 

444,  452 

Vacancy  in  Presidency 

542 

Establishment  of  Judiciary 

587 

Appellate  Jurisdiction 

651-655 

Appropriations  of  Money 

346,  850,  486 

Internal  Improvements      346  -  i 

350,453-458 

Embargoes 

462-464 

\       Alien  and  Sedition  Act 

464,  465 

'     Treason,  punishment  of 

466-469 

State   Records,  proof  and 

effect  of 

470-472 

Admission  of  new  States     . 

473,  474 

Government  of  Territories 

476-479 

Purchase  of  Foreign  Territory 

459 

of  Domestic  Territory 

473 

CONNECTICUT,  Origin  and  Settlement  of 

34-36 

CONQUEST,  Laws  of,  as  to  Colonies    . 

62-64 

CONSCIENCE,  Rights  of 

CONSTITUTION  OF  UNITED  STATES 

Origin  and  Adoption  of       . 

105-109 

General  objections  to    . 

.      110-115 

Whether  a  Compact  or  League    . 

116-122 

INDEX. 


725 


CONSTITUTION  OF  U.  STATES,  Continued.        ■ 
Formed  by  the  People,  and  not 

by  States  .  .- -.  117-118 

Final  Interpreter,  who  is     -       .  .     123  -- 133 

tlules  of  Interpretation  of   -  ,  134-162 

Preamble,  Exposition  of  .  .     163  ~  194 

Division  of  powers,   Legisla- 
tive, Executive,  Judicial        .  .      195  —  198 
Legislative  power,  Division  in- 


to  two  Branches 

199-208 

The  House  of  Representatives 

(^ee  Representatives.) 

210-251 

The  Senate.     (See  Senate.) 

252-290 

Mode  of  passing  Laws 

315,316 

President's  negative 

317-325 

Powers  of  congress.    {See 

Congress.)    . 

.      329-488 

Executive  department,    (^ee 

President.) 

515-580 

Judicial    department.     [See 

Judiciary.) 

581-668 

Supremacy  of  Constitution, 

Treaties  and  Laws 

684-687 

Ratification  of 

691,692 

Amendments  of,  how  made 

678  -  682 

CONSTRUCTION,  Rules  of,  —  of  Constitution     . 

.     134-162 

CONSULS,  Appointment  of      . 

552,  559 

Suits,  by  and  against     . 

606,612-614 

CONTEMPTS  OF  CONGRESS,  how  punishable       . 

301,  302 

whether  pardonable 

by  President 

551 

CONTRACTS,  Impairing,  prohibition  of 

489,498-511 

of  the  United  States,  how  interpreted 

480 

COPYRIGHT,  of  Authors    .... 

.    402-404 

CORPORATION,  composed  of  citizens,  when 

entitled  to  sue 

632 

Foreign,  when  it  may  sue 

.       636 

CORRUPTION  of  Blood,  in  Treason 

466-469 

COUNSEL,  Right  to,  in  criminal  cases 

660,  665,  667 

COURTS.     (5'ee  Judiciary.)      .... 

585-590 

State,  appellate  jurisdiction,  over 

643-649 

CRIMES,  how  prosecuted  and  tried 

655-658 

CRIMINALS,  Fugitive        .... 

.       674, 675 

not  bound  to  accuse  themselves           659,  660, 66.2,  663 

726 


INDEX. 


CRIMINALS,  Continued. 

Trial  of         .... 

not  to  be  twice  tried 
"CROWN,  Rights  and  Prerogatives  of,  in  the  Colonies 

D. 
DEBTS 

Revolutionary,  provided  for      . 
of  United  States,  priority  of  payment 
DEBT,  PUBLIC,  stock  not  taxable  by  a  State 

Old,  declared  valid 
DEFENCE,  Common,  power  to  tax  for 
DELAWARE,  Origin  and  Settlement  of    . 
DIRECT  TAXES,  What  are 

How  apportioned     . 
DISCOVERY,  Right  of,  to  America 

Effect  of,  on  Indian  Title 
DISQUALIFICATION,  &c. 

of  President 

of  Members  of  Congress     310 
of  Electors 
DISTRICT  of  Columbia         .... 

Legislation  in      . 
DIVISION  of  Legislative,  Executive,  and  Judicial 
powers.  Reasons  for 
of  Legislative,  Reasons  for 
DUTIES,  Power  to  lay 

Meaning  of        . 

to  be  uniform  .... 

Prohibitions  on  States 


656-668 
662 

75-78 


683 

456 

356,  357 

683 

339-331 

54-55 

337-341 

338,  339 

3-7 

5-7 

.    540,542      '■'^ 
314,529,538 
.      529, 538 

427,  428 

427,  428 

195-198 

199-209 
.    329-357 

329-331 

337-342 
354,  356, 512 


ELECTIONS  of  Representatives        .           .            .  291-294 

of  Senators              ....  291-294 

of  President  and  Vice-President           .  529  —  540 

ELECTORS  of  President  and  Vice-President        .            .  529-538 

Time  of  choice  of           .            .             .  538  -  540 

of  Representatives  and  Senators 

(,See  Elections.)        .            .             .  291-294 

Disqualifications  of             .   -     -   .            .  528,  529 

EMBARGO,  power  to  lay      .....  462-464 

What  constitutional            .            .            .  462-464 

ERROR,  Writ  of,  Nature  and  Effect  of          .            .  652-655 

EXCISES,  What  are.    (>S'ee  Duties.)         .            .            .  339,340 
EXCLUSIVE,  what  powers  of  congress  are,  or  not         148  -  J  54, 366 


INDEX. 


727 


EXECUTIVE  department,  Organization  of 
EXECUTIVE,  Unity  of,  Reasons  for 

Duration  of  office 

Re-eligibility.     {See  President.)    . 
EXPORTS,  Prohibition  of  Duties  on       . 
EX  POST  FACTO  LAWS,  prohibition  of,  by  congress 

by  a  state 


FELONIES,  What  are        .... 

On  High  Seas      .... 
FINES  and  FORFEITURES,  Pardon  of  by  President 

Prohibition  of,  excessive 
FREEDOM  of  the  Press    .... 
of  Speech  generally 

in  Congress 
of  Religion      .... 
FUGITIVE,  Criminals  .... 

Slaves    c  .  .  . 

GENERAL  WELFARE,  Power  to  Tax  for 
GEORGIA,  Origin  and  Settlement  of    . 
GOVERNMENT,  Republican  form  of,  guarantied  . 
GRAND  JURY,  in  Crimes         .... 
GUARANTY  of  Republican  form  of  Government 

H. 
HABEAS  CORPUS  WRIT,  Privilege  of 

Suspension  of  . 
HIGH  SEAS,  what  is  ...  . 

Crimes  on  .... 

HOUSE  OF  REPRESENTATIVES. 
{See  Representatives.) 

I. 
IMPAIRING  CONTRACTS,  Prohibition  of 
IMPEACHMENT,  Power  of,  in  House  of  Representatives, 

Trial  of  in  Senate 

of  President  and  Vice-President 

Judgments  on 

who  are  liable  to    . 

for  what  offences 
IMPLIED  POWERS  OF  CONGRESS 
Duties  of  National  Government 


515- 

546 

516- 

521 

521- 

523 

.  523- 

-527 

353,  354 

5   484- 

-486 

.  496 

510 

.   4a5- 

-407 

405- 

-407 

, 

552 

. 

710 

698,703- 

-707 

698- 

-703 

303,309,310 

.   698- 

-703 

.  674,675 

675,  676 

329- 

-331 

. 

61 

.   677, 678 

659- 

-672 

677,678 

.   482- 

-484 

482- 

•489 

. 

408 

405- 

-408 

.   210 

-252 

498- 

-510 

es,   249 

,251 

.   271- 

-290 

283,  284 

288- 

-290 

283- 

-286 

.   286- 

-288 

431- 

-441 

,     , 

480 

728 


INDEX. 


IMPLIED  EXEMPTIONS  from  State  Power 
IMPORTS,  a  State  cannot  tax 
IMPOSTS,  Meaning  of        .  .  . 

[See  Duties.) 
INCIDENTAL  POWERS  OF  CONGRESS 
INDEPENDENCE,  Declaration  of 
INDIANS,  Title  to  Territory, 

Commerce  with 
INDICTMENT,  when  necessary 
INFERIOR  OFFICERS,  who  are  in  sense  of  Constitu 

tion 
INJUNCTIONS,  to  or  by  State  Courts 

to  or  by  United  States  Courts 
INSOLVENT  LAWS,  how  far  constitutional 
INSPECTION  LAWS,  what  are 
INTERNAL  IMPROVEMENTS,  Power  of 
Congress  .... 

(.S'ee  Appropriation) 
INVENTIONS,  Patents  for   . 


356,  357,  442,  443 

354-512 

.  337-- 340 

431-441 

88,  89 

1-7 

359,379-382 

.  659,661 
itu* 

566,  567 

650,  651 

.  650,651 

390,  391 

354,  355 

346-350,  453-456 


402-404 


JEOPARDY  of  life  or  limb,  in  crimes 
JOURNALS  of  each  House  to  be  published 
JUDGES,  Appointment  of 
Tenure  of  Office 
Duties  of,  none  but  Judicial 
Compensation  of      .  ♦ 

Impeachment  of.    [See  Judiciary. 
Territorial    . 
J-UDICIARY,  Organization  and  Powers  of 
Importance  of    . 
Appointment  of  Judges 
Tenure  of  Office 
Compensation  of       .  , 

Establishment  of  Courts 
Jurisdiction  of  Courts 

When  exclusive  or  not 
Power  of  Congress  over 
Original  Jurisdiction 
Appellate  Jurisdic- 
tion 
from  State  Courts 


659,  660,  662 
299,  300 
552,559,590 
585,591-602 
655 
585,602-605 
.     283 
605 
581-606 
581-585 
552,  559,  590 
585,  591  -  602 
585,602-605 
585-590 
^06-636 
649,  650 
585-590,  639-655 
.       636-638 


639 


649,  651-655 
643,653-655 


INDEX.  729 

JUDICIARY,  Cases,  what  are  .  .  .  608-612 

Parties  in  suits    .....  606 

when  a  State  a  party  .  .      626-628 

Suits  by  and  against  Ambassadors  .  612  -  614 

Admiralty  Suits  ....     614-620 

Suits  by  United  States       .  .  .  620,621 

by  or  against  States         621,  622,  623,  626,  633,  641 

by  citizens  of  different  States  621,  628  -  630 

under  grants  of  different  States  621,  632  —  633 

by  or  against  Foreigners  or  Foreign 

States  .  .  .  621,633-636 

Trial  of  Crimes      .  .  .       656, 668, 674 

JURISDICTION  OF  COURTS  OF  UNITED  STATES      606  -  636 


Original 

636-638 

Appellate.    {See  Judi- 

ciary.)    .            .             636- 

-  649,  651  -  655 

over  Cases  from  State  Courts 

643-649 

Regulation  of,  by  Congress 

636,638-640 

Removal  of  Suits  from  State 

Courts 

643-646,652 

When  exclusive,  or  concurrent 

649,  650 

As  to  facts 

651,653-655 

By  Appeal 

651,652-655 

By  Writ  of  Error 

652,653-655 

JURY,  TRIAL  BY 

in  Criminal  Cases 

.    655-659 

in  Civil  Cases 

.        654 

Grand  Jury 

.    659-662 

KING,  Rights  and  Prerogatives  of,  in  Colonies        .  .        75  —  78 

L. 
LANDS  PUBLIC,  Power  of  Congress  over        .        428,  429,  459,  473 
LAWS  OF  UNITED  STATES,  Supremacy  of         .  684  -  687 

LAW  OF  NATIONS,  offences  against    .  .  405,  407,  408 

LAW  OF  THE  LAND,  Meaning  of  ...  663 

LEGISLATION,  when  exclusive  in  Congress,    (^ee 

Commerce.)        .  .       148  —  154 

in  ceded  places       .  .  .  427  —  429 

on  high  seas      ....       405  —  407 

when  not  exclusive.    [See  Taxes.)  148  — 154 

LEGISLATURE.    {See  Congress,  Senate,  Representatives.) 

Abr.  92 


730 


INDEX. 


LETTERS  OF  MARQUE  AND  REPRISAL,  Power  of 

Congress  ......  409 

Prohibition  on  States  to  issue        .        489 
LIBERTY  of  the  Press  ....    698,703-707 

of  Speech 698-703 

in  Congress         .  .  .      303,309,310 

LOUISIANA,  Purchase  of 

M. 
MAINE,  Origin  and  Settlement  of 
MANUFACTURES,  Power  of  Congress  to  encourage 
MARYLAND,  Origin  and  Settlement  of 
MASSACHUSETTS,  Origin  and  Settlement  of 
MEASURES  AND  WEIGHTS,  Power  of  Congress  as  to 
MIGRATION  AND  IMPORTATION  OF  SLAVES 
MILITIA,  Power  of  Congress  over 

Discipline  and  Government  of  - » 

Calling  forth  by  Government   . 

Command  of        . 

Right  to  bear  arms    .... 
MINISTERS,  PUBLIC,  Appointment  of    . 
Receiving  of,  by  Executive 
Violations  of  Rights  of 
Right  to  sue 
MONEY,  Coinage  of  .... 

Power  to  borrow 
Bills,  or  Revenue  Bills    . 
N. 
NATIONAL  BANK,  Constitutionality  of 
NATURAUZATION,  Power  of    . 
NAVIGATION,  Regulation  of 
NAVY  AND  ARMY,  Power  to  establish    . 

Regulation  of     . 
«  NECESSARY  AND  PROPER,"  Meaning  of,  as  to  powers 

of  Congress 
NEGATIVE  of  President  on  Laws 
NEW-ENGLAND,  Origin  and  Settlement  of 
NEW-HAMPSHIRE,  Origin  and  Settlement  of 
NEW-HAVEN  COLONY,  Origin  and  Settlement  of 
NEW-JERSEY,  Origin  and  Settlement  of 
NEW- YORK,  Ofigin  and  Settlement  of 
NOBILITY,  Prohibition  of  Titles  of,  by  Congress 

by  the  States 


.   459- 

462 

31 

-33 

371- 

379 

.   41 

-43 

19 

-27 

to   392, 

394 

481, 

482 

420, 

421 

.  421- 

423 

421- 

425 

.   421- 

■425 

, 

708 

.   559,560 

574,  576, 579 

612,  613 

606,612- 

■614 

.   392, 393 

358,  359 

315,  317 

444- 

■452 

.   383, 384 

3t:0,  361 

,362 

.  412- 

-419 

418,  419 

owers 

431  - 

441 

315,317- 

■  325 

.   13 

-18 

28 

-30 

.  34 

-36 

47 

-49 

.   44 

-46 

, 

487 

, 

511 

INDEX. 


7^J^ 


NORTH  CAROLINA,  Origin  and  Settlement  of         .  56-60 

O. 
OATH  OF  OFFICE,  by  Officers  of  United  States        .         688-  690 

of  Senators  and  Representatives  .            688 

of  President            .            .  .        544,545 

{See  Impeachment.) 

by  State  Officers           .            .  688,689 

OBLIGATION  OF  A  CONTRACT,  what  it  is    .  .     499-  503 

OFFICE,  Tenure  of,  by  Judges.    {See  Judiciary.)  585,  591  -  602 

by  President  and  Vice-President        .  521, 522 

Appointments  to.    {See  Appointments.)  .        552, 559 

Disqualifications  to  hold  230,235,  265,267,  529,538,540,542 

Foreign,  Prohibition  to  hold            .            .  .            487 

When  Appointee  is  in    .            .            .  .            .    573 

OFFICERS,  who  are  inferior  in  sense  of  Constitution  566,  567 

ORIGINAL  JURISDICTION.    {See  Judiciary.)        .  636-638 

P. 

PAPER  MONEY,  Prohibition  of.    (^ee  Tender.)  .        491,495 

PARDONS  AND  REPRIEVES,  by  President          .  546  -  552 

Whether  extending  to  Contempts        .  .                 551 

not  extending  to  Impeachments     .            .  551,  552 

PARLIAMENT,  Powers  and  Rights  of,  over  Colonies  .      78  -  80 

PARTIES  TO  A  SUIT,  who  are,  and  when  a  State  606,  626-628 

PATENTS  FOR  INVENTIONS         .            .            .  402-404 

PENNSYLVANIA,  Origin  and  SetUement  of       .  .50  -  53 

PEOPLE,  Constitution  framed  by          .            .            .  .134 

PETITION,  Right  of,          .            .           .           .  .               707 

PIRACY,  Power  to  define          ....  405-407 
PLANTATIONS  AND  COLONIES,  General  Law 

Governing           .            .            .  .         62  —  65 

PLYMOUTH  COLONY,  Origin  and  Settlement  of  .            15  - 18 

POLL  TAXES 340,341,350 

POST-OFFICE  AND  POST-ROADS,  Power  respecting     396  -  401 

POST-MASTER  GENERAL,  Suits  by          .            .  .         457 

his  Patronage  an  anomaly         .  .      566  —  568 

POWERS  OF  CONGRESS,  Incidental         .            .  431-466 

Express.    (»Stce  Congress.) 

Implied        .           .  .     431-466 

When  exclusive,  or  not  148—  154 

POWERS,  reserved  to  States  or  People        .            .  711-714 

PREAMBLE  OF  CONSTITUTION,  Exposition  of  163-194 

PRESS,  Liberty  of  the          ....  698,703-707 


732 


INDEX. 


PRESENTMENT,  what  it  is      . 

.       671 

PRESIDENT,  Negative  on  Laws 

315,317-325 

Mode  of  Choice  of 

.     529-538 

Re-eligibility  of             .            .            . 

523-529 

Duration  and  Tenure  of  Office    . 

521,  522 

Non-election  of             .            .            . 

529,  534 

Vacancy  of  Office  of 

.    542 

Powers  of       . 

546-580 

Incidental 

579,  580 

Duties  of         . 

574-576 

Appointments  by 

552,559-568 

when  complete 

573 

Vacancies  filled  by 

573, 574 

Removals  by              .            .            . 

568-573 

Power  to  require  Opinions  of  Departments        546,  547 

Calling  forth  Militia 

422-425 

Making  Treaties  (See  Treaties) 

.    552-559 

Command  of  Militia 

.       546 

Resignation  of            .            .            . 

.     542,543 

Pardon  and  Reprieves  by 

546-551 

Qualifications  of        . 

.     540, 542 

Compensation  of 

543,544 

Oath  of  office 

.      544,545 

Commander  of  Army  and  Navy 

546,  547 

Power  to  Convene  and  Adjourn  Congrc 

5SS       574-576 

Receiving  Ambassadors 

574,576-579 

Resignation  of  Office 

542,  543 

Impeachment  of        . 

.     283, 284 

Veto  of               ... 

315,317-325 

PRESIDENT  OF  THE  SENATE 

268-271 

{See  Vice-President.) 
PRESENTS  FROM  FOREIGN  GOVERNMENTS,  Pro- 
hibition of       .  .  .  .  .  .  .487 

PRIORITY  OF  PAYMENT  OF  DEBTS  DUE  TO 

THE  UNITED  STATES  ....  456 

PROCESS,  Due,  of  Law,  what  is  .  .  .  670,673 

PROHIBITIONS  on  the  United  States         .  .  481-489 

on  the  States  .  .  .489  -  514 

[See  States) 
PROPERTY  taken  for  Public  Use,  Compensation  for  670,  673 

PROPERTY  OF  UNITED  STATES,  Power  of  Con- 
gress over  .....        474,476  —  479 


INDEX. 


733 


PROPRIETARY  GOVERNMENTS,  what      .  .            .  68,69 

PROTECTIVE  DUTIES,    (^-ce  Taxes.)    .            .  371 --379 

PROVINCIAL  GOVERNMENTS,  what         .  .                67,68 

PUBLIC  LANDS, 474,476-479 

PUNISHMENTS,  CRUEL,  not  to  be  inflicted  .            .        710 

PURCHASE  by  the  United  States  of  Foriegn  Territory        .  459 

of  Bills  of  Exchange            .            .  .           .     480 

Q. 
QUALIFICATIONS  AND  DISQUALIFICATIONS  OF 

OFFICE      230, 235, 265, 267, 529, 538, 540, 542 


of  House  of  Representatives 

of  Senate 

of  President 

of  Electors  of  President 
QUARTERING  TROOPS, 
QUORUM  OF  EACH  HOUSE 

R. 
RATIFICATION  OF  CONSTITUTION,  how  made 
RECORDS  AND  LAWS  OF  STATES,    how  proved 

Effect  of  Proof 
of  Colonies,  effect  of 
RELIGIOUS  TEST,  Prohibition  of 
RELIGION,  Freedom  of  ...  . 

REMITTANCES,  how  United  States  may  make     . 
REMOVALS  FROM  OFFICE  BY  PRESIDENT 

Whether  the  Concurrence  of  the  Senate 
ought  to  be  required 
REMOVAL  of  Suits  from  State  Courts 
REPRESENTATIVES,  House  of,  in  Colonies 

first  Colonial,  in  Virginia 
in  Congress 
How  chosen 
Term  of  Service 
Qualifications  of         i 
Apportionment  of 
Speaker  of  House  of 
Impeachment  by 
Disqualifications  of 
REPRIEVES  AND  PARDONS,  Power  of  President 
REPRISAL,  Letters  of  Marque  and  Reprisal 
[See  Letters  of  Marque.) 


230-235,529 

265-267,529 

540,  542 

529,  538 

709 

295,  296 


691,  692 
470-472 
470-472 

471 

688,  690 

698-703 

480 
568-573 

568-573 

643-646,652 

72,  73 

9,10 

210-251 

.     210-219 

210,219-229 

230-235 

235-247 

248,249 

248-251 

310-314,529,538 

346-351 

409,  489 


7M 


INDEX. 


RESERVED  Powers  and  Rights  of  the  People        ,  .  711 

RESULTING  Powers 441, 442 

REVENUE,  Bills  to  raise  ....  315-317 

REVENUE  BILLS,  what  .  .  .  .315-316 

REVOLUTION,  AMERICAN,  Origin  and  History  of  75,  84-  90 

Powers  of  Government 

during  the  .  .        89-90 

RHODE-ISLAND,  Origin  and  Settlement  of  .  37-40 

RIGHTS  RESERVED  to  the  States  and  People    .  .  711 

ROADS  AND  CANALS,  Power  as  to  .        346  -  350,  453  -  458 

S. 
SEARCH  AND  SEIZURE  OF  PERSONS  AND 

PAPERS,  Prohibition  of  ....        709 

SEAT  OF  GOVERNMENT  ....     427,  428 

Power  of  Legislation  over  427,  428 

SEDITION  ACT,  whether  Constitutional        .  .  464,  465 

SENATE,  Organization  of  .  •  .  252-268 

How  chosen  ....         252-256 

Number  of  ....       252,256-264 

Term  of  Service  .  .  .  252,258-264 

Vacancies  in,  how  supplied  .  .  .  264 

Qualifications  of  ....        265-267 

President  of  ....  268-271 

Power  to  try  Impeachments      .  .  .        271  -  290 

{See  Impeachments.) 
Disqualifications  of        .  .  .  .       310  -  314 

SLAVES,  Representation  of    ....      235,239-241 
Migration  and  Importation  of    .  .  .         481, 482 

Fugitive 675,676 

SLAVE  TRADE,  Prohibition  of  ...        481, 482 

SOLDIERS,  Quartering  of,  prohibited  .  .  .709 

SOUTH-CAROLINA,  Origin  and  Setdement  of  .  56-60 

SPEECH,  Liberty  of,  in  Congress  .  .  303,  309,  310 

SPEAKER  OF  HOUSE  OF  REPRESENTATIVES  248,  249 

STATES,  Admission  of  new        ....  473,475 

Prohibitions  on.    [See  Prohibitions.)        •  489  —  514 

Treaties,  Aliances,  Compacts  .  .         489, 490 

Letters  of  Marque  and  War  .  .  .  490 

Coining  Money  ....  490, 491 

Bills  of  Credit        ....  491-495 

Tender  Laws  ....  496 

Impairing  Contracts  .  .  .  498-511 


INDEX.  i^^^^^H        735 


STATES,  Continued.                                                   * 

^^^' 

Bills  of  Attainder 

496 

Ex  post  facto  Laws 

.     496, 510 

Titles  of  Nobility 

511 

Keeping  Army  or  Navy      . 

512 

Laying  Duties  or  Imposts 

354,  512 

Laying  Taxes        .... 

354,  366,  486 

Tax  on  Bank  of  United  States 

356,357 

on  Public  Debt 

.      356, 357 

Tax  on  Importation 

354,  356 

Tonnage  Duties 

.     354, 512 

Declaring  War 

512,  514 

Suits  by  and  against 

.    621-625 

(5^ee  Judiciary.) 

When  a  party  to  a  Suit 

626,  627 

Courts  of,  Appeals  from 

643-646,652 

SUPREMACY  of  Constitution,  Laws,  and  Treaties 

T. 
TAXES,  Power  of  Congress  to  lay 

664,  687 

.        329-357 

Extent  of  power        .            .            .            . 

329-357 

Whether  to  regulate  Commerce 

343,  369 

or  encourage  Manufactures 

369-379 

for  Common  Defence  and  General  Welfare  329,330,343,369 
for  Internal  Improvements        .  .  .  343  -  350 

{See  Appropriation.) 
Direct,  what  .  .  .  .  337-341 

Indirect,  what 337-341 

Power  not  exclusive  .  .  148-156, 366, 486 

Restrictions  on  Power     .  .  .  350,  353,  354 

Prohibitions  on  the  States,  as  to        .  .  354,  355 

TENDER  LAWS,  Prohibition  of  .  .  .  496 

TERRITORIES  OF  UNITED  STATES,  Govern- 
ment of         .  .  427,428,459,474,476 
Law  of  Conquered            .  .  .         62-64 
Law  of  Plantations,  (^^ee  United  States.)    62  —  65 
TEST,  Religious,  Prohibition  of        .            .            .  .     688,690 
TESTIMONY  OF  CRIMINALS,  not  compulsive             670,  672,  673 
TONNAGE  DUTIES,  by  United  States            .            .  .        353 
Prohibition  on  States           •        354  -  356,  512 
TREASON,  Definition  of           .           .           .            .           669-672 
Evidence  of     .            .            .            .            .        669, 671 
Effect  of  Conviction           ...            466  -  469 
Punishment  of             ....     466-469 


I 


736  INDEX. 

TREATIES,  Prohibition  on  States  to  form        .  .  489,  490 

Power  of  President  and  Senate  to  make      .       552  -  559 

TRIAL  OF  CRIMES,  in  what  place        .  .  .        660-674 

by  Jury,  in  Criminal  Cases  .  *      656-668,674 

in  Civil  Cases     .  .  .  .  654 

TROOPS,  Quartering,  Prohibition  of  .  .  .  709 

U. 
UNITED  COLONIES,  Powers  of,  during  Revolution  .        90,  91 

UNION,  Importance  of  .  .  .  .  163-175 

UNITED  STATES.    {See  Constitution.) 

Supremacy  of  Laws  of         .  .        684, 687 

Priority  of  Debts  to       .  .  .  456 

Right  to  Sue  .  .  .        442, 620 

Right  to  Contract  and  Grant    .  .  442 

Right  to  Purchase  Foreign  Territory  459 

Right  to  acquire  Domestic  Territory  473 

Implied  Duties  of  .  .  .         480 

[See  Prohibitions.) 
UNITY  OF  EXECUTIVE,  Reasons        .  .  .        516-521 

V. 
VACANCIES,  Appointments  by  State  Executives  to  Senate  264 

Appointments  by  President   in  recess  of 

Congress 
in  Office  of  President  and  Vice-President 
VETO,  President's 

T, 

Reasons  for  Creation  of 
President  of  Senate 
Powers  and  Duties 
Vacancy  of  Office  of 
Impeachment  of 
Duration  of  Office  of 
Resignation  of 
VIRGINIA,  Origin  and  Settlement  of 

W. 
WARRANTS,  General,  Prohibition  of 
WAR,  Power  of  Congress  to  Declare     . 

Prohibition  on  the  States 
WEIGHTS  AND  MEASURES,  Power  of  Congress  as  to 
WITNESSES,  Criminals  not  bound  to  be 

in  Criminal  Cases 
WRIT  OF  ERROR,  Nature  and  Effect  of 


573,  574 

ident                 542 

315,317-325 

515,516,529-538 

527-529 

268-271 

.    542,543 

542 

.      283, 284 

521,  522 

542,  543 

.      8-18 

.      709, 710 

409-412 

512,  513 

s  as  to        392,  394 

.      659,  660,  662 

660,666 

652-655 

'^"^  14  DAY  USE 

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